Grizzly bears, and a new look at an old word: "Interference"

In a recent blog, NRDC’s Whitney Leonard reflected on the June Interagency Grizzly Bear Committee meeting. She noted that during the meeting, a number of managers called Federal District Judge Donald Molloy’s 2009 ruling that reinstated endangered species protections for the Yellowstone grizzly bear population “legal interference”. Whitney described the ruling as a “textbook application of our tested system of checks and balances.” There is more that can be said on this topic.

It is interesting to look at the history and meaning of the word “interference”. According to an online etymology dictionary, the word has both literal and figurative meanings, both of which are worth examining, because they shed light on the role of litigation in the current grizzly bear debate.

The figurative definition of the word is “to meddle with, oppose unrightfully”, from the 1630’s. Yet, in an interesting 2008 paper in Policy Sciences by University of Montana professor Martin Nie, “The Underappreciated Role of Regulatory Enforcement in Natural Resource Conservation”, the author contends that litigation is vital to the regulatory process, rather than meddling. The author notes that “litigation provides a check on unresponsive and/or captured agencies. Environmental laws can languish because of agency cultures, competing priorities, and political-budgetary pressures… Instead of obstructionists, then, litigators view themselves as public watchdogs who ensure that agencies do what Congress intended…, and the courts are apt to see their role as legitimate and necessary in order to achieve accountability and justice… Supporters also see litigation as an authentic form of democratic participation and often view the judiciary as the venue of choice when legislative and executive branches are seen as beholden to special interests.”

I agree with Nie’s interpretation. The authors of the Endangered Species Act (ESA) explicitly provided for citizen access to the courts, allowing those outside the government to challenge agency decisions if they appeared to violate the law. It is widely acknowledged that agency decision-making and accountability have improved as a result of citizen access to the courts.   

Years ago, I was reminded how incredibly special and desirable this ESA provision was in the course of a conversation with Chinese panda bear expert, Dr. Pan. Having listened to a talk on the ESA and the provision for citizen suits by an attorney at Earthjustice, Dr. Pan went out of his way to say that he wished there was in China the equivalent of an ESA, including the citizen suit provisions. Without such legal requirements, the Chinese government could essentially do whatever it wanted with endangered species management, no matter what the science showed, he said. There was great potential for the government to abuse its power. He was clearly worried for the future of the panda, which lacked the kind of safety net that imperiled species in the US enjoy.

The definition of interference as “meddling” clearly does not apply to citizen’s bringing suit under provisions of the ESA.  Opportunity for litigation was deliberately provided by lawmakers to ensure agency accountability. Citizen suits and subsequent improved decision-making demonstrate that the ESA is actually working as its authors intended, contrary to the complaints of agency personnel who have been discomfited by judicial rulings.

The other meaning of the word “interference” is more literal. It comes from the Middle French, from “entre” or “between”, and “ferir” or “to knock or strike.” Its original root is the Latin “forare”, which means to “bore, make a hole in.” In his 2009 ruling, Judge Molloy did “strike” the federal government’s case in two areas that lay at the heart of the delisting decision. In reading his thorough, 46 page ruling, it becomes clear that the judge took the issues raised in the case very seriously.

The first key issue that Molloy “struck” had to do with the importance of and threats to whitebark pine. The government argued that whitebark pine was not significantly threatened, and even if it was, it didn’t matter because grizzly bears could find alternative foods. But this argument contradicted overwhelming scientific evidence, mostly developed by government scientists, that whitebark pine was not only vital to the health of the Greater Yellowstone grizzly bear population, but also critically threatened. Molloy caught the government in a logical nonsequitur, on an issue of critical importance to the future of the population. He “struck” the illogic of the government’s argument. Specifically, Molloy wrote: “the record fails to support the [Fish and Wildlife] Service’s conclusion that whitebark pine declines do not pose a threat to the Yellowstone grizzly bear DPS [Distinct Population Segment]. The record shows the opposite: that declines could jeopardize grizzly bear survival.”

Certainly it is not too much to ask the government to be logical in its thinking and argumentation. Society benefits when rational thought is required of those implementing its policies.

The second issue that Molloy “struck” was the adequacy of regulatory mechanisms to sustain the population after ESA protections were removed. This issue was not new to the government, which had heard from a great number of people during the public comment period that the post-delisting regulatory scheme was deficient. For one thing, the states that would assume primary authority over grizzly bear management after delisting had no authority over federal decision-making.  This mattered, because the lion’s share of grizzly bear habitat lies on public lands. For another, the regulations governing management of bear habitat on national forests was not legally binding. Furthermore, the conservation strategy—an interagency document that outlined post-delisting management—was a handshake agreement and also not legally enforceable. Molloy did “strike,” and it was at the government’s unsupported argument that the post-delisting regulatory system was adequate to maintain a healthy grizzly bear population.

In his ruling, Molloy wrote: “The final rule in this case does not demonstrate that the conservation strategy and state plans are adequate regulatory mechanisms to maintain a recovered population. Without the protection of the ESA, the Yellowstone grizzly bear DPS will be placed in jeopardy.”

Using the word “interference” in its more figurative sense doesn’t fit the intent and history of the ESA, including its prescient and well-thought-out provision for citizen lawsuits.  The more literal definition, “to strike,” fits much better, especially when describing Judge Molloy’s insightful verdict regarding patent deficiencies in the government’s case for delisting. Government officials would serve the broader public interest best by sitting down with the litigants to collaboratively fix the grizzly bear delisting plan, rather than complaining about judges, governing laws, and the lawmakers who made them.