Court drama on safety net for Yellowstone grizzly bears

Left to right: Earthjustice attorneys Sean Helle, Jenny Harbine and Douglas Honnold at the 9th Circuit Court of Appeals.

The March 2011 oral argument on the 9th Circuit Appeal of Judge Molloy’s ruling that relisted Yellowstone grizzly bears included a fascinating exchange between the federal attorney defending delisting and the panel of judges on a key question: is there an adequate safety net to protect bears if they are delisted?  Put another way, did the delisting rule and other laws build in systems that would respond quickly enough to problems that may appear after federal protections are removed?  In the course of the hearing, several judges expressed concerns about over-harvest of grizzly bears by hunting—not surprising, given what has been going on with wolf hunting seasons in Idaho and Montana. 

It turns out that this was a key issue raised by over 200,000 commenters to the U.S. Fish and Wildlife Service on the delisting rule.  Over 99% of the commenters opposed the rule, and most mentioned the lack of trigger mechanisms to respond to problems should they arise.  Two years later, here is what the judges had to say on the topic, and the federal government’s response.

Honorable Sid Thomas: “so let’s assume that the three states allow, and they intend to allow, hunting at some point.  If they [Fish and Wildlife] Service decides that hunting has been excessive, I assume that the only remedy is through formal petition for relisting, and that’s the only option that the federal government has.  Or am I wrong on that?”

Federal Attorney Allen Brabender: “If the species is threatened as a result of the amount of hunting, then yes.  The remedy would be to relist the population.  That is correct your honor.”

Honorable Richard Tallman: “How does the Memorandum of Agreement [between grizzly management agencies] play into Judge Thomas’ question?”

Allen Brabender: “Through the agreements that the states have promised to follow, the mortality limits and population standards in the strategy.  And among other things, what the strategy does, is that it’s an agreement to manage the population at no less than 500 bears--”

Honorable Richard Tallman: “I guess the question I’m wrestling with here, as I understand the argument on the other side, would be that if the various monitoring mechanisms show that the population of bears is being dramatically reduced above acceptable mortality levels through hunting, what remedy is there to, in essence, get the states to stop issuing bear hunting permits?”

Allen Brabender: “well the states have promised to follow the mortality limits--”

Honorable Susan Graber: “that’s not the question though, if they don’t--”

Allen Brabender: “if they don’t, the remedy is to relist the population.”

Honorable Sid Thomas: “and how long does that take typically?”

Allen Brabender: “well your honor, it can be done on an emergency basis and--”

Honorable Sid Thomas: “No, but I said typically.”

Allen Brabender: “uh, well it takes, I think that there is a deadline of 6 months or something--”

Honorable Sid Thomas: “And you start with scientific evidence and a petition and then…”

Allen Brabender: “right, yes, you have to follow the formal notice and comment and rule-making procedures and it takes--”

Honorable Sid Thomas: “a couple of years at least, I would say normally, wouldn’t it?”

Allen Brabender: “I think it was a 6 month limit, but maybe it does sometimes take more than that, your honor.”

As someone who has been asking a lot of these same questions that the judges were for many years, I was particularly interested in this exchange. 

In the delisting rule, Fish and Wildlife Service relied on a handshake agreement with the states and other agencies to abide by mortality limits—limits that have been breached in 2008 and 2010.  According to this agreement, called the Conservation Strategy, If the states violate its terms, then the only recourse that the Fish Wildlife Service has is to relist the population—a tall order politically, and one that is likely to take many months, as Judge Thomas indicated, if not years.  In fact, some 34 species had to wait so long for FWS to respond that they went extinct while on the waiting list (See Susan D. Daggett, NGOs as Lawmakers, Watchdogs, Whistle-blowers, and Private Attorneys General, 13 Colo. J. Int’l Envtl. L. & Pol’y 99, 110-11 (2002)). 

The fact that there has been little response by agencies to the violation of mortality standards in 2008 and 2010 gives us little reassurance that a truly adaptive management strategy is in place to deal with the deteriorating habitat conditions that Yellowstone’s bears face.  With what is happening with whitebark pine, the time to respond is upon us.  Grizzlies are increasingly at risk.  Human-caused mortalities have been mounting in the wake of the collapse of whitebark pine.

A logical response to this situation would be to redouble efforts to prevent human-caused mortality, placing priority on places in the periphery where bears are showing up.  Some managers in the BLM and Forest Service have been moving in this direction, such as in the Gravellies.  Others have been slower: and with ever-increasing budget constraints, securing needed resources to bear proof campgrounds and educate the public about safety in bear country is becoming more difficult. 

Another sensible response would be to provide bears access to additional suitable habitat, which still exists in the Wind River, Palisades, Wyoming and Salt River Ranges and Beartooths.  Unfortunately, much of this habitat occurs in Wyoming, a state that has been reluctant to expand the places where bears can go. 

And overall, there seems to be little political will to move forward with these common-sense solutions.  That’s why litigation can be important.  That’s why too an independent judiciary can be valuable to ask the hard questions that often don’t get asked in the self-referential arenas that management agencies operate in. 

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