Attorneys argue disjointed grizzly case

JACKSON —A convoluted challenge of the legal status of Yellowstone-area grizzlies progressed Tuesday in a federal appeals court as five attempted to clarify their disparate arguments.

The Ninth Circuit Court of Appeals proceedings, which were streamed over a Zoom call, started with Department of Justice attorney Joan Pepin making her case for why the U.S. Fish and Wildlife Service shouldn’t have to conduct a deep review of grizzly bears outside the Greater Yellowstone Ecosystem when delisting the population within the ecosystem. Lower 48 grizzlies outside the ecosystem were called the “remnant” population.

In short order, U.S. Circuit Court Judge Andrew Hurwitz interrupted Pepin.

“I’m having trouble, without a scorecard, figuring out whose positions are which positions,” Hurwitz said. “Tell me what we’re fighting about if — at the end of the day — everyone agrees that no matter what process you use, the remnant should remain listed? What are we fighting about?”

Pepin answered that her agency was fighting over what the Endangered Species Act requires dealing with the remnant grizzlies.

The “remnant” population wasn’t the focal point of the service’s 2017 decision to remove Endangered Species Act protections for the 700-plus Yellowstone-region bruins. What to do with those outside grizzlies, however, has become a sticking point of litigation that challenged the delisting decision, which opened the door for grizzly hunting.

Yellowstone-area grizzlies were relisted as a “threatened” species by U.S. District Court Judge Dana Christensen in 2018, and his decision took jurisdiction away from Wyoming, Montana and Idaho. He faulted the Fish and Wildlife Service for failing to consider how removing the distinct and isolated population of Yellowstone bears would affect the rest of the species.

Wyoming and Idaho, along with trophy hunting advocacy groups, intervened in the case, but they were not able to come to terms with the Fish and Wildlife Service about what to challenge.

The federal agency has agreed to remand and revisit the delisting rule, which basically restarts the Endangered Species Act delisting process.

Wyoming Special Assistant Attorney General Jay Jerde argued for the interveners, and he made the case that the states should be able to challenge the remand of the delisting rule. He challenged some of the issues that Christensen ruled on in 2018: Whether it was appropriate to change methods for counting grizzlies and whether the states must have plans in place to relocate grizzlies from elsewhere to increase genetic diversity.

Jerde couldn’t be reached for an interview.

Earthjustice attorney Tim Preso and WildEarth Guardians counsel Matthew Bishop argued on behalf of various environmental advocacy groups and Native American tribes. They are trying to make the appeals court force the Fish and Wildlife Service to conduct a deep analysis to decide whether grizzlies outside the Greater Yellowstone region qualify as a “significant” distinct population segment. The entire Lower 48 population was previously considered one segment, but the Yellowstone grizzlies — which cover a huge part of the species’ southern range — were a critical part of that distinct population.

Now the question is what must the service do — and all parties agree it should do something — to ensure that grizzlies outside the tri-state Yellowstone area qualify as a federally threatened animal under the Endangered Species Act. What the service said it was going to do to satisfy the act was “pretty limited,” Preso said in an interview.

“I was trying to explain to the Ninth Circuit that the government’s apparent acceptance of the district court’s decisions seems to be less than it appears,” Preso said.

A seasonal Wilson resident and attorney, Bob Aland, made his case separately. He also couldn’t be reached for an interview.

Aland, who is a passionate grizzly defender, summarized six issues, and he rejected the district court judgment that remanded the delisting rule back to the Fish and Wildlife Service. Instead he wanted the appeals court to vacate the rule altogether — and bar the agency from issuing another, which means the Endangered Species Act would protect the Yellowstone population in perpetuity.

“How many times do they get to do this, over and over,” Aland said. “Five, six? We’ve been through this in the Greater Yellowstone.”

Yellowstone grizzlies, which were first listed in 1975, had reached recovery goals six years in a row by 2003. The federal government first delisted the population in 2007, but it was overturned by the courts in a ruling that hinged on the whitebark pine’s precipitous decline, collapsing a keystone grizzly food source. Federal scientists subsequently determined that grizzly diets were adjustable enough to make up for it, and that the population was safe.

Western Watersheds Project’s Erik Molvar said after the arguments that the states have failed to make a “good faith effort” to allow grizzly populations to expand to other ecologically suitable habitats. Grizzly range in the ecosystem is steadily stretching, but before the species was relisted Wyoming had plans in place to hunt down the population along its fringes.

“The oral arguments we heard today spotlighted a litany of moving the goalposts, limiting conservation efforts, and fundamentally withholding the protections that grizzlies need to achieve a long-term recovery,” Molvar said in a prepared statement, “demonstrating that the states aren’t ready to take over the responsibility for grizzly bear conservation.”

The other two Ninth Circuit Court judges to hear the case were Mary Schroeder, a Carter administration appointee, and Paul Watford, who was seated by President Barack Obama.

There is no predetermined timeline for when the justices will release the written ruling. It’s likely their judgment will keep Yellowstone grizzly bears confined to the Endangered Species Act, unless they side wholly with the intervenors — Idaho, Wyoming and the trophy hunting groups.

Preso had no prediction on what’s to come.

“Any predictions you make based on oral argument are really worthless,” he said.

Fish and Wildlife’s grizzly recovery coordinator, Hilary Cooley, declined an interview for this story, citing the pending litigation. A Department of Justice public affairs representative did not return a phone call.