A coalition that wants to keep Yellowstone-area grizzly bears under federal Endangered Species Act protection says a recent court ruling on gray wolves proves their case that the government is acting too fast.
“They gambled they were going to win that appeal and they lost,” said Earthjustice attorney Timothy Preso, who represents the Sierra Club, Center for Biological Diversity, National Parks Conservation Association and Northern Cheyenne Tribe against the U.S. Government and the state of Wyoming.
“We pointed out to them they had a problem. The proper thing was to send it back, instead of cobbling together a new justification for an issue they blew off when they had the chance to consider it the first time around," Preso said.
Last July, the U.S. Fish and Wildlife Service removed grizzly bears in the Greater Yellowstone Ecosystem from the Endangered Species List, declaring the population of about 700 bears fully recovered and ready for state management.
But in August, the U.S. District Court of Appeals in Washington, D.C., ruled in a separate case involving gray wolves in the Western Great Lakes region that FWS can’t decide a species is recovered in one place without first showing how that might affect other, unrecovered populations.
The Greater Yellowstone Ecosystem is one of six recovery zones that grizzly bears inhabit or could inhabit in the Lower 48 states. Among the others, the Northern Continental Divide Ecosystem in northwest Montana holds about 1,000 grizzlies. The remaining four recovery zones hold about 50 bears or fewer, with the Bitterroot Ecosystem on the Montana-Idaho border having no grizzlies currently.
Federal officials anticipate delisting the NCDE bears later in 2018, but that depends on the results of the Greater Yellowstone challenges. Five separate federal lawsuits have challenged the Greater Yellowstone delisting rule.
“The Service’s power is to designate genuinely discrete population segments; it is not to delist an already-protected species by balkanization,” the Court of Appeals judges wrote in the wolf case. “The Service cannot circumvent the Endangered Species Act’s explicit delisting standards by driving an existing listing into a recovered sub-group and a leftover group that becomes an orphan to the law. Such a statutory dodge is the essence of arbitrary-and-capricious and ill-reasoned agency action.”
In December, FWS announced a new public comment period asking how the wolf decision might affect the Yellowstone grizzly delisting. FWS grizzly recovery coordinator Hillary Cooley said Monday the agency could not comment on pending lawsuits. The public comment period ended Monday.
Preso argued the wolf decision shows FWS acted unlawfully when it delisted the Greater Yellowstone bears without explaining how that would affect the other recovery zones.
Monday's legal motion asks the U.S. District Court in Missoula to vacate the Greater Yellowstone delisting and return Lower 48 grizzlies to federal protection.
“The law doesn’t let them go back and rejigger their analysis after their rule is out the door,” Preso said. “You can’t do a surgical delisting without considering the whole species.”