Grizzlies Under Fire
“The threat we’re facing transcends even this grizzly situation — it goes to the entire Endangered Species Act itself.”
Yellowstone’s grizzly bears were stripped of Endangered Species Act protections in defiance of the best available science. Earthjustice, on behalf of our clients — Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity, and National Parks Conservation Association — immediately filed a legal challenge.
Tim Preso, Earthjustice’s lead attorney on the lawsuit, delivered oral arguments in federal court in Missoula on Aug. 30, just two days before the first grizzly trophy hunts in more than 40 years were set to commence. In this conversation, held on Aug. 31, Tim explains the outcome of the hearing:
This year, the Wyoming Game & Fish Commission voted to allow hunters to shoot as many as 22 grizzly bears outside of Yellowstone National Park. Idaho Fish & Game likewise allowed for the hunt of one grizzly bear within its borders outside of the park. The hunt was set to start tomorrow, September 1st. The reason states were permitted to take this action was due to a 2017 decision by the Federal Fish & Wildlife Service to remove the Yellowstone region’s population of grizzly bears from the threatened list under the Endangered Species Act.
At the beginning of the hearing, the judge made clear that he did not intend to issue a ruling from the bench. Accordingly, yesterday afternoon, Earthjustice attorneys moved quickly to file a request for a temporary restraining order to prevent the hunt from going forward tomorrow. Just after 5:00 p.m. local time yesterday, the judge issued his temporary restraining order stopping the hunts for 14 days.
To talk about that order and what this means for grizzlies and what we can expect to happen next, we have Managing Attorney of Earthjustice’s Northern Rockies Regional Office, Tim Preso.
What happened in the courtroom yesterday?
Yesterday’s order from the court came at the end of a momentous day for Yellowstone’s grizzly bears. The day was scheduled for the federal district court in Montana to hear arguments from all the parties in cases challenging the government’s 2017 decision to remove Endangered Species Act protections from the Yellowstone grizzly bear population. The case was scheduled so that the court’s hearing would occur before the scheduled beginning of the state hunting seasons for grizzly bears in Wyoming and Idaho. It was an unusual situation where the litigation was proceeding at an expedited pace in order to get all the issues teed up for the district judge in advance of the hunting season.
Yesterday morning, at 9:00 a.m. began a series of arguments by lawyers from a variety of different interests and parties ranging from myself — on behalf of the Northern Cheyenne Tribe, the Sierra Club, Center for Biological Diversity and National Parks Conservation Association — to the federal government and the U.S. Justice Department lawyers defending the grizzly bear delisting decision, and the interested parties from the states of Wyoming, Idaho and Montana, as well as various hunting advocacy groups.
The judge heard oral arguments over a period of four hours from 9:00 a.m. to 1:00 p.m., so the issues were pretty exhaustively treated, but I think many of us were unsure what the schedule would be, for the court to issue a ruling at the close of that process. It’s not unusual for courts to take some time after an oral hearing for a ruling issue, but because of the timing of this hearing in relation to the beginning of the hunts, we were unsure what the judge was going to say. But he did make clear that he was not going to issue his final decision in the case yesterday, so once the hearing closed at 1:00 p.m., we and the other plaintiff groups moved quickly to ask the judge for a temporary restraining order, which is essentially an emergency injunction request so that no grizzly bears would be killed under this delisting decision while its legality is still being determined by the federal court.
Yesterday afternoon at 5:05 p.m., the judge issued a temporary restraining order that prohibited the hunts from going forward, at least for 14 days. This means that as of tomorrow morning, there will not be bears being killed by hunters outside the boundaries of Yellowstone National Park under the auspices of a government determination that we believe and we have contended is illegal. And it gives the judge some time to work on his final resolution of the case. We look forward to that final decision and we’ll respond accordingly once it’s issued, but for today, grizzlies won’t be killed under the authority of this disputed decision.
And, read the request for the temporary restraining order, filed by Earthjustice attorneys Tim Preso and Josh Purtle, on behalf of our clients:
How long has Earthjustice and our partners been working on grizzly protection in the greater Yellowstone area?
The protection of the grizzly bear has been at the center of the work of the Earthjustice office in the Northern Rockies since it was founded 25 years ago. The office was founded to respond to local people and organizations that were seeking legal help to protect the grizzly population in and around Yellowstone National Park.
At that time, a key issue was that on the federal public national forest land surrounding Yellowstone National Park, the federal government was engaged in a program of building roads and logging deep into the backcountry of some of the bears’ best remaining habitat so some of our early cases were focused on protecting that grizzly habitat and preventing further degradation. In that regard, it’s important to recognize that although Yellowstone National Park is our first national park, and it’s a very large national park, grizzly bears have shown by their use of the landscape, that Yellowstone National Park is not enough to sustain a grizzly population over the long run. You need not just Yellowstone National Park, but that surrounding group of national forest lands and other public lands to create what’s become known as the Greater Yellowstone Ecosystem, in order to sustain a grizzly bear population, even for the short term.
We’re fortunate in the Yellowstone region, that we have this immense body of public lands, many of which are in a relatively undeveloped state and can provide habitat, not only for grizzly bears, but also for elk, bighorn sheep, moose, wolves, mountain lions and all this incredible richness of wildlife that we still have in this region. But the grizzly bear is perhaps the most iconic of all those wildlife species and it generates strong feelings. There are strong feelings from people that grizzlies are special and should get special protection, and not be subject to hunting and there are strong feelings on the other side of these issues as well. Some of those got ventilated in the courtroom yesterday and we’ll see what the judge’s decision is when he gets a chance to sort through all those and make a determination on whether this grizzly delisting decision was legal or not.
What are Earthjustice’s main arguments for challenging the government’s decision to strip federal protections from grizzly bears?
This case comes in the midst of a massive ecological change in the Yellowstone region that is driven by a warming climate and that change is fundamentally affecting the food that grizzly bears have to eat in the region. It’s having ripple effects throughout the entire ecology of the region, in terms of the number of grizzly bears that live and the number that are killed.
The key moment for this ecological change occurred in the mid-2000s when suddenly the white bark pine tree — the seed cones of which had been an important grizzly bear food, particularly in the fall — suddenly started dying off by many hundreds of acres. This is because white bark pine are a species of tree that grow at high elevations where cold winters had insulated them from pine beetle infestation, but with warmer winters, as we’ve had a warming climate, the pine beetles moved into the upper elevations and wiped out 75% of the white bark pine trees.
This is important for grizzly bears because for decades, the white bark pine seed cones, which produce a rich fatty pine seed, basically a kind of a nut, more or less, had been an important fall food source for grizzly bears. The bears weren’t climbing pine trees to get the seed cones or anything like that; squirrels would go harvest these pine cones and store them inside a rotten log or an old marmot hole or something like that and grizzly bears, they’d come along and tear that open and have this big banquet of white bark pine seed cones that helped them put on the nutrition they needed to get them ready for their winter denning period.
We saw a direct relationship between white bark pine seed cones and grizzly bear mortality. White bark pine is a high elevation species. When bears are eating white bark pine seed cones, they’re up at high elevation and basically out of harm’s way.
What we also saw was in bad white bark pine years, bears were not up in that zone, they were down in the lower elevation areas where they were encountering people. They were looking for other things to eat. They were getting in conflicts with people, whether that meant preying on livestock owned by a rancher or mixing it up in the landscape where a lot of recreational hunting activity occurs and getting into surprising encounters with hunters where bears are shot.
In those years where there was bad white bark pine seed production, there were a lot more grizzly bear deaths. Flash forward to 2017 when this grizzly bear delisting petition was made, white bark pine has been virtually wiped out of the Yellowstone region by warming winters and 75% of our former white bark pine trees are dead, and every year is a bad white bark pine seed year.
We’ve seen this steadily rising grizzly bear mortality in the region as bears get into more and more conflicts with people, especially in this fall period. The number of what we call ‘conflict mortalities’ — which is basically bears being killed through conflicts with ranching operations, getting into surprising encounters with hunters or otherwise seeking out human food and getting into trouble and being killed as a result — rose from about 10 to 15 per year in the mid-2000s, up to a record level of 45 in 2015. Again, very high levels in 2016 and 2017, and now 2018, to date, is the single most lethal year for grizzly bears in the documented history of grizzly mortalities in Yellowstone.
This is because more bears are down, mixing it up with people in a landscape where bears are increasingly getting killed, so our first key issue to the judge was: this is not the time to pull the rug out from under the population by removing federal protections and loosening the rules surrounding the killing of grizzly bears, and opening up a whole new source of mortality, which is this plan for recreational trophy hunting of grizzly bears.
Our view, that we explained to the judge yesterday, was that the federal government was looking to put the finishing touches on this delisting rule just as the scope of this new mortality threat was really becoming clear, and instead of putting on the brakes, they stepped on the accelerator and moved forward to get this federal withdrawal of protection done. That was a premature decision. The bears are dealing with a major new threat and that should have been their focus instead of removing federal protections.
Another key issue is that in delisting the Yellowstone population, the government was acting against the backdrop of a situation in which grizzly bears, throughout the entire lower 48 states, were deemed a threatened species in 1975 under the Endangered Species Act.
Instead of dealing with recovery across that larger landscape of recovery potential in the lower 48, the government decided to do this surgical delisting of the Yellowstone population, and didn’t address what that means for the remainder of bears in the lower 48. What is their conservation status and how will recovery efforts continue to be authorized for those once Yellowstone is removed from the picture?
What does ‘success’ look like for the grizzly bears and what have we and scientists concluded is a fully recovered grizzly bear population?
I’d say, first and foremost, success is not withdrawing needed protections right at the moment the bears are dealing with unprecedented levels of mortality due to conflicts with people. I don’t think we’re in a situation where we’ve got a close call about whether there’s some different vision of success and recovery that needs to take precedence. We don’t even have in our view, a secure picture of a recovered population, under even the narrow view that the government took, that Yellowstone could be carved out of the lower 48 and subjected to its own determination as to threatened or recovered status.
As to the larger question however, what is the vision of recovery for grizzly bears? A lot of scientists believe, and frankly the Fish & Wildlife Service at one time took the position, that recovery of grizzly bears in the lower 48 doesn’t mean just carving out an isolated population in Yellowstone and calling it ‘recovered’, but rather seizing the opportunity that is now available to create a connected population of grizzly bears from the Canadian border all the way south to Yellowstone.
There are currently grizzly bears in the Glacier National Park, Bob Marshall Wilderness Area Region in northern Montana, and the southern outliers of that population and the northern outliers of the Yellowstone population, are only about sixty miles apart at this point, so there’s this great opportunity to connect up those populations and have this linked up grizzly population from the Canadian border to Yellowstone. Also, once that’s accomplished, to pave the way for grizzly bear recolonization of the big central Idaho wilderness areas and the Selway-Bitterroot and the River of No Return country. Those are huge wilderness areas that are public land, managed for wild space and wildlife. It’s a great opportunity for grizzly bears to be restored because that’s all historic grizzly bear habitat.
There’s a lot of concern among many that if we start carving out these isolated populations for delisting from the Endangered Species Act, before those connections are made and secured, we’ll lose the opportunity to have that connected, integrated population from Canada to Yellowstone and into the Selway-Bitterroot and some of these other recovery opportunities. The basic picture is that grizzly recovery is much more secure for the long term.
Moving into a very dynamic time where changing climate is changing a lot of things that we had previously relied upon. In Yellowstone, we talk about the change in food sources. Climate change is continuing and we cannot anticipate everything that’s going to unfold, but what we can say for sure is, if you’ve got a fully connected population of grizzly bears from Canada to Yellowstone, with the opportunity in the Bitterroot also capitalized on, you’ve got a much more secure situation for grizzlies to persist into the future. For a lot of folks, that’s the vision and unfortunately not one that’s reflected in the delisting decision that we’ve challenged in court.
Where were these hunts set to take place?
The hunts were planned to take place starting tomorrow, Saturday, outside of Yellowstone and Grand Teton National Parks. There was an additional area where hunting was not allowed that was directly adjacent to Grand Teton National Park, but the vast majority of the public lands surrounding Yellowstone National Park in Wyoming and Idaho would have been open to grizzly bear hunting under the approach that the states had developed.
Of course, grizzly bears don’t understand the boundary between a national park and the adjacent national forest land so one of the things the National Park Service had expressed a lot of concern about — during the process leading up to this delisting decision — was that bears that use the national parks are, in some cases, the focus of a lot of public attention in the national parks, would be subject to trophy hunting once they crossed the park boundary. That was an issue that animated a lot of public concern about this grizzly bear delisting.
In Jackson Hole, there is a situation where in Grand Teton National Park and surrounding lands, there’s been remarkable public attention focused on this particular female grizzly bear that’s designated by number 399. Over the course of many years now, she has been an annual kind of celebrity in the Jackson Hole area as she has emerged from a winter den and every so often with a new cub or two. Her cubs have then grown up in the region and themselves have become the focus of a lot of public interest. These bears have been extensively photographed, filmed, documented and publicized around the world, in the media. There is a lot of concern among those who are passionate followers of 399 and her progeny and the other bears that she consorts with, that those bears would be killed in hunting as soon as they stepped out of one of these zones where hunting wasn’t allowed, into the much larger landscape where hunting was going to be permitted.
So it’s not a situation of hunting in the National Park, so much as it is hunting outside the parks. Another thing to keep in mind is, grizzlies use that entire surrounding landscape, they don’t just live in the park. There’s a lot of grizzly bears that make their homes outside the park lands and would have been subjected to hunting under the program — that was an issue.
What is the argument from the Game & Fish Department for the decision to delist and allow this hunt?
I don’t really want to be in a position of trying to speak for the Wyoming Game & Fish Department and trying to explain what their justification was for doing this. What I’ll just say as a general matter is that, the State fish and game agencies are certainly responsive to the hunter constituency and there was a desire on the part of not just Wyoming, but also Montana and Idaho, to have the opportunity to hunt grizzly bears recreationally. There was a lot of strong feeling about that. There was certainly a strong feeling on the part of people who wanted to engage in that hunt. There was also a strong feeling on the part of those who thought that hunt should not take place.
We saw a pretty remarkable thing happen, particularly in the Jackson Hole area, where a group of citizens spontaneously organized themselves to compete for the limited number of grizzly hunting tags that were available in Wyoming, with the purpose not of hunting bears with a gun, but as they said, ‘shoot them with a camera.’ Their purpose was to compete for these hunting tags and then go out in the woods and try to photograph bears, as opposed to kill them. That would reduce the number of bears that could be killed and it turned out two people who were part of that effort, did win tags in Wyoming so there were at least two of those tags that weren’t going to be used to hunt a grizzly bear.
Remarkably, one of those actually was won by a guy by the name of Tom Mangelsen, who’s one of our nation’s premier wildlife photographers, and has done a beautiful book about bear 399 and her story in the Jacksonville area that features tremendous photos of that bear and her cubs and the experiences he’s had with 399. As the lottery in Wyoming played out, he got one of those tags. There are a lot of passionate people involved in this issue and there’s been an extraordinary amount of citizen activism and advocacy. The last few months have seen some pretty amazing stories play out.
Is there anything that someone who’s heading to Wyoming can do to help resist the return to allowing grizzly hunting?
I think one thing that’s useful is to make sure that the people in Wyoming, merchants and the like, understand that people come to Wyoming to see these bears alive, not dead. Many more people come to Yellowstone and Grand Teton for the thrill, the opportunity to have that connection with something so wild that still exists in the 21st century, like a grizzly bear. To be able to see those bears in Grand Teton, with 399 and her daughters and other bears that are known in that area, is one of the really amazing places in the world where you can see grizzlies in the wild, in their natural habitat, alive. That opportunity is really pretty unique.
I think it’s something that makes sense, to make sure that the merchants that are benefiting from all of that tourist economy, understand that the interest is in seeing live bears. Of course, if we’re in a position where the most tolerant bears are suddenly exposed to hunting, it’s going to also be those most tolerant bears that are going to be shot. That opportunity to readily observe bears in an interface of a wild landscape and human recreation, is going to diminish. That’s something that maybe people who care about seeing those bears living in the wild, should make their voices heard about.
What is the importance of connecting habitats and are we using that as a legal argument?
This is what I think about when we talk about connecting habitats — the Yellowstone grizzly population is totally isolated from any other grizzly bear population in the world right now, but only just barely at this point. The grizzly bear population has expanded to the point where now Yellowstone Grizzlies are only about 60 miles away, at the nearest point, from the grizzly population in the Northern Continental Divide, which is the population that’s stronghold is Glacier National Park and surrounding wilderness lands. The opportunity to connect those up means a few things but one of them is about genetics. If you have an isolated population, over time you’re going to have genetic erosion so it’s useful to have a connection to other bears so that you can get new genes coming into the genetic pool.
The answer to this delisting rule was — we hope that bears will connect up, but we are going to start hunting them, and if they don’t, we’ll truck bears in from another ecosystem to provide genes for genetic diversity in the Yellowstone population. My reaction to that is that I think it’s kind of a shame that in this last great wild place in the lower 48 that we have here in the northern Rockies, we have to resort to trucking bears in the back of a truck, in a cage to deal with genetic integrity over the long term, when we have this opportunity to have a naturally functioning population that can do that without human intervention.
But the bigger picture than that is, if you’ve got a connected population of bears, you’ve just got that much more resilience to withstand all kinds of threats that are likely to come their way. Some of those we can see already in terms of changing food sources as we get warmer temperatures. Plants, some die out and some new ones show up. There are going to be big changes and the population is just much more secure if it’s not balkanized into little isolated populations here and there, but is connected up in one big robust population from Canada to Yellowstone. And as I said earlier, that’s the vision a lot of people have for what recovery really ought to look like.
How did the hearing go yesterday?
One of the things that became clear yesterday was that the judge in the case was very well prepared. He had reviewed the reams of documents that the parties had all filed with the court, but he’d also dived into the agency’s own files, their own records that were linked to this issue and done a lot of reading. During the course of the hearing yesterday for instance, he produced a document for the lawyers to respond to that the government itself had generated in the 1980s, which said that they did not believe that achieving what they call ‘recovery’ in just one region such as Yellowstone, would be enough to justify removing Endangered Species Act protections, but rather that they needed to achieve recovery in three different regions in order to justify that. Obviously, they’ve changed their view since then, but he was very interested in knowing why that was and why the bar had been lowered.
In general, I would say that all parties got a chance to exhaustively present their positions to the judge and that’s what we hope for — a chance to fully explain our position and make our best arguments to a smart, well prepared judge. That’s what happened yesterday and we’ll wait to see what the judge rules. He clearly understood that this was a case that many people were interested in, that the outcome would be very significant and that there was also an interest in him getting that ruling out as expeditiously as possible. So now he’s at work and we’ll wait to see what his determination is.
What is the role of U. S. Secretary of the Interior Ryan Zinke in this delisting and is there any pressure being put on him?
This is a decision that was made by the Interior Department at the time when Zinke was the Interior Secretary so ultimately the buck stops there. I don’t know that I can tell you what pressures have been placed on Interior Secretary about this. What I can say is that if you are unhappy with the decision the government has made about Yellowstone grizzly bear protections under the Endangered Species Act, it certainly would not hurt to let Secretary Zinke know about that. After all, these are our government leaders and they work for all of us so I think it’s very useful to understand how people feel about these decisions.
Why are there no efforts to relocate the Wyoming bears to areas like the North Cascades of Washington or the Selkirk area?
For those who may not understand, the North Cascades of Washington State is an area that has a lot of really promising grizzly bear habitat, historically had a grizzly bear population and is currently identified as a grizzly bear recovery zone. There may be a handful of grizzlies that still persist somewhere in that landscape, but it is generally unoccupied. The Selkirk range, which is in northeastern Washington and northern Idaho, is an area that does have a very small, clinging to existence, grizzly bear population. The North Cascades is really the area that has been talked about for relocating grizzlies to try to recover the grizzly bear in that area.
It’s something that the Fish & Wildlife Service is actively considering right now. One of the concerns we had in the court case that we argued yesterday was that removing protections from Yellowstone calls into question the government’s authority to continue recovery actions in places like the North Cascades, that could essentially pull the rug out from under those efforts. We believe under the law, there’s a key issue there about that threat. That’s one of the issues we’ve asked the judge in this case to resolve because we do think it’s important for places like the North Cascades and the Bitterroot, which are recovery zones designated by the government for the grizzly bear, but currently unoccupied. We think it’s important that those recovery opportunities continue and that there’s a continued government authority to pursue recovery in those areas. That’s one of the things we were trying to stand up for in court yesterday.
Do we fear further actions by the Trump administration to weaken protections for grizzlies or other species because of Trump’s sons’ fondness for trophy hunting?
I’m not sure about the predicate for the question, but what I can certainly say is that there’s a big threat to the Endangered Species Act right now. Already the current United States Congress that we have, has generated a number of legislative proposals to weaken the Endangered Species Act. The Trump administration itself has proposed regulatory changes to the detailed implementing language for the Endangered Species Act that would weaken protections. This is a really dangerous time for the Endangered Species Act itself, let alone grizzly bears or any other species it protects.
The very law that authorizes those protections is in jeopardy. This is a key moment for those who care about the Endangered Species Act and want to retain its protections to speak up and let their representatives know about that. There’s a reason why there’s this constant barrage of attacks on the Endangered Species Act, and that’s because it is effective at protecting species by preventing degradation of their habitat and the like. Since the Endangered Species Act was passed, it has been successful in preventing the extinction of 99% of the species that it has covered. It’s been a critical safeguard against further environmental degradation over the last decade since the Endangered Species Act was passed in 1973 but it’s never been more in jeopardy than it is right now so people who care about the act need to speak up.
During this delisting effort, did Ryan Zinke consult with Tribal Nations? And if not, is the delisting decision legal?
There was a lot of concern from Native American tribes about the level at which the government consulted with them and heard their concerns about delisting of the Yellowstone grizzly bear population from the protections of the Endangered Species Act. One of the lawsuits that was before the judge yesterday was a case brought by the Crow Indian Tribe and a number of others raising those very issues about the adequacy of the government’s coordination with Native American people over the loss of federal protection for the grizzly bear, and the prospect that grizzlies were going to be subject to recreational trophy hunting, because — and I’m certainly not in a position to speak for the tribe here, but generally — many of them have a really strong cultural and spiritual interest in the grizzly bear. Those are issues that were raised. Yesterday’s court hearing was solely about the Endangered Species Act issues and the Indian tribal consultation issues are waiting in the wings. If the judge determines that the Endangered Species Act issues are ultimately not a basis to invalidate this Yellowstone grizzly delisting, there’ll still be tribal consultation issues to be addressed.
What I can say is, I’ve got the privilege in this case of representing the Northern Cheyenne Tribe and I know from discussions that the Northern Cheyenne Tribe had requested consultation and had concerns about the way the consultation was conducted. The Northern Cheyenne Tribe also has a history with the grizzly bear that runs back a millennia. The Northern Cheyenne people were interacting with the grizzly bear before any of my ancestors were on this continent and that’s a profound connection that I know they feel very strongly about. They would love to see a future where the reservation in Montana could once again be a place where grizzly bears could be seen in the wild, but we’re not at that place right now.
When we get a decision from the judge on the status of these bears, what will the impact of that decision have on exploratory mining for the Rock Creek Mine in the Cabinet Mountains Wilderness?
The Cabinet Mountains in far northwest Montana and northern Idaho are the site of a wholly separate grizzly bear population that also occupies the Yaak River region in Montana. A very small population that’s basically hanging on by a fingernail to existence, is threatened by proposals for two large scale industrial copper and silver mines that would directly border the Cabinet Mountains Wilderness Area and the Kootenai National Forest — a lot of it being on public national forest land. That’s a whole separate issue that we’re engaged with in the Northern Rockies Office of Earthjustice and have been for about two decades now. This Yellowstone grizzly delisting issue doesn’t directly affect the Cabinet Mountains’ bears in that they weren’t delisted by this decision.
But the issue that we raised about how the Yellowstone delisting will affect the listing and the protections of grizzly bears elsewhere in the lower 48, certainly does touch on the Cabinet-Yaak bears and we feel strongly that the protections for those Cabinet-Yaak bears need to be maintained. That was one of the reasons we brought this claim to the judge yesterday.
Is there any work being done to restore the white bark pine and other food sources for grizzly bears?
There is some work. One of the things that we have seen is that not all white bark pine trees are susceptible to being killed off readily by pine beetles. Some white bark pine trees were resistant. There also is an exotic, Eurasian disease that is afflicting white bark pine trees which is called blister rust. Although many white bark pine trees are killed when they contract blister rust, some of those are resistant as well. So there has been, fortunately, an effort to gather the seeds of those white bark pines that are resistant to some of these threats, and try to begin an operation to replant some white bark pine seeds and restore that as part of the Yellowstone ecosystem.
Unfortunately, it’s fairly small scale and the prognosis is unclear. In any case, the benefits, even if fully successful, are a long way away because it takes a long time for a white bark pine seedling to grow into a tree that can provide a seed cone crop that can provide a meal to a grizzly bear.
Given the desire by some in the Department of Interior to declare the Yaak area too small to manage, what conservation strategy should we pursue to best protect all Montana and Canadian bears?
One of the things that we were concerned about with this Yellowstone delisting was that it raised big questions about the government’s effort under the Endangered Species Act to continue to protect these other populations in the lower 48 after the Yellowstone population was carved out. The government had previously relied on the Yellowstone population as its justification for being able to conduct a protection program elsewhere in the lower 48.
One of the things we pointed out to the judge was in this set of documents the government generated in the process of doing these Yellowstone grizzly delisting. There was an email from the U.S. Fish & Wildlife Services’ own Endangered Species Act listing coordinator, raising the concern that if they carved out Yellowstone from the lower 48, what would that mean for their ability to continue to protect some of these other small populations like the Cabinet-Yaak, and raising the concern that those populations might ultimately lose their protections because of the course that the government was pursuing. We pointed out to the judge that it wasn’t just us raising this concern. it was also the internal deliberations of U.S. Fish and Wildlife Service itself.
Ultimately again, for a lot of people, the vision is connecting up these populations into one unified grizzly population. In the Cabinet-Yaak of northern Montana, it’s pretty close to the Northern Continental Divide, there are opportunities there, but that’s not the vision that the Fish & Wildlife Service is pursuing right now, not with respect to linking of Yellowstone at least.
Have we worked with an ethologist (ethology is the scientific and objective study of animal behavior) to craft a legal argument?
We have worked extensively with scientists on this. We are fortunate in that there are a number of independent scientists who can serve as a critical review of the government’s assertions about the relevant science on grizzly bears. We’ve been fortunate in having the assistance of some of them. Yesterday for instance, when we filed this request for a temporary restraining order, we were able to support it with written testimony from Dr. David Mattson, formerly of the U.S. Geological Survey, and Dr. Barrie Gilbert, who is a Canadian scientist who’s got a very long track record of grizzly bear study in the U.S. and Canadian Rockies.
We had key support from really highly credentialed scientists for our request of the court and we’re very fortunate to be able to have that because one of the issues that occurs in these cases is that the government gets to make these decisions under the law, and the government scientists get a lot of deference from the courts under the law. When we go into court to take on one of these decisions, the burden is on us to come in and show not just that the court might have chosen differently if it had made the choice in the first instance, but rather that the government decision was so wrong and so irrational as to be able to be labeled arbitrary. In order to do that, it’s very helpful to be able to show that other scientists have critiqued this and seen the flaws in the government’s approach and reasoning. We focus a lot of our arguments on those points. I’m not sure of the role of ethology in the particular Yellowstone delisting, but suffice to say there are a number of disciplines that were brought to bear and we went to court with pretty strong science back up to our position.
What can people do to support this effort to help Yellowstone grizzlies?
First, I want to talk about what already has been done. This case has been beyond any other, in my experience, in the amount of organic citizen activism that’s risen up around it. That includes that ‘shoot them with a camera’ campaign that I mentioned earlier. For those who didn’t hear that, there was a movement that arose in the Jackson Hole area to have non-hunters apply for the limited number of hunting tags available in Wyoming with the goal of going out in the woods with a camera rather than a rifle, to look for grizzly bears and to avoid some of the grizzly hunting mortality that otherwise would occur.
There was also a huge petition drive led by Doug Peacock, who’s a longtime grizzly activist from here in Montana. There were letter writing parties by activists during the Fish & Wildlife Service process that led up to this delisting decision. There’s just been this really amazing outpouring of public support. With that ‘shoot them with a camera’ effort, the people who signed up range from, everybody from, regular residents of Jackson Hole, all the way to Jane Goodall in London trying to weigh-in in order to prevent bears from being killed in the hunting season. Looking forward at this point, what’s critical is to recognize that the threat that we’re dealing with transcends this grizzly situation, and really goes to the entire Endangered Species Act itself.
Members of Congress have introduced more than 75 bills that would weaken or undermine the Endangered Species Act. and as I mentioned, the Trump administration have introduced their own regulatory proposals to really get into the detailed machinery of how the Endangered Species Act works and make a number of what might look to the public like subtle or small scale changes, but have big impacts in how the Endangered Species Act works to protect wildlife. It’s important for members of Congress to hear from their constituents if they want to see the Endangered Species Act retained as a strong protection for wildlife. The Endangered Species Act has for decades been one of the most popular pieces of legislation and always has had strong public support. That has not stopped the onslaught of attacks and every time these kinds of attacks are raised, the public has risen up to defend the Act.
Now the threat is greater than ever before and the public response needs to be greater than ever before to defend the Act. I would just note that on our website, earthjustice.org/action, we’ll be providing updates about the threats to the Endangered Species Act, as well as the opportunity to add your name to a petition or other actions to help defend the Act. When you sign up, you can also get information that opens the door to getting more information about the Endangered Species Act and the threats to it, and actions that can be taken to defend it. The other thing is, if you’re interested in this Yellowstone grizzly case, earthjustice.org/grizzlies is a good source of information about where things stand. It’s been updated by the minute over the last 24 hours so that the most current information is available and certainly we’ll keep doing that as this goes forward.