JACKSON — In a flurry of legal filings over the fate of grizzlies, both sides have turned to catastrophic weather to make their case.
“For the federal agency that must comply with it, a mandatory deadline in a federal statute is like a prairie hail storm — the agency cannot run from it, cannot hide from it, and cannot make it go away,” Jay Jerde, Wyoming’s assistant attorney general, wrote in a legal brief filed in August. “Yet Secretary Haaland and Director Williams apparently believe the mandatory deadlines in the Endangered Species Act do not apply to them.”
In response, attorneys for the U.S. Fish and Wildlife Service dropped some hailstones of their own.
Grizzly populations fell from 50,000 bears nationwide to some 750 — and about 136 in Wyoming — in 1974, the year before they were protected under the Endangered Species Act, they wrote in court documents filed in September.
“During this period of decline, Wyoming classified grizzlies as common predators, and outside of National Forest and National Park Lands, those bears could be trapped, shot, and poisoned without any license at all,” federal attorneys wrote. “The animosity these grizzlies faced was just like the prairie hailstorm invoked by Wyoming in its opening brief; the bears could not run from it, hide from it, or make it go away.”
The State of Wyoming is suing the U.S. Department of the Interior and a subsidiary, the U.S. Fish and Wildlife Service, which oversees endangered species, for missing a deadline to decide whether or not to move forward with delisting the bears.
The Fish and Wildlife Service, meanwhile, is asking U.S. District Judge Kelly H. Rankin to give it until July to make a decision.
But the state is alleging that Interior Secretary Deb Haaland and Fish and Wildlife Service Director Martha Williams are willfully avoiding making a decision because they don’t want to make one.
Federal officials counter that they’re leery of all-but-certain litigation that will come when they make a final decision on grizzly bears’ legal status, and they need extra time to make their arguments bulletproof.
The legal salvo is the latest dispute in a decades-long fight over whether grizzly bears deserve federal protections — and can or can’t be hunted — in the Greater Yellowstone Ecosystem.
Other lawsuits also are raining down over Greater Yellowstone grizzlies. In response to a lawsuit from an environmental group challenging Idaho’s killing of three grizzly bears near Tetonia, the state is counter suing the federal government, trying to get a judge to revive its petition to remove protections for grizzlies in the lower 48 states. The Fish and Wildlife Service rejected it earlier this year.
Wyoming’s Republican congressional representatives are trying to pass bills that would have Congress, rather than the executive branch, remove grizzlies’ federal protections. Meanwhile, the Fish and Wildlife Service’s former grizzly bear recovery coordinator, Chris Servheen, is championing the idea of a federal act to protect the bears.
In the area surrounding Yellowstone National Park, the bears’ population rebounded to an estimated 965 bears in 2022. That’s an estimated median, and scientists are 95% confident there are between 819 and 1,121 bears in the demographic monitoring area, the primary area where scientists study bear populations.
While Wyoming, Montana and Idaho all argue that criteria for delisting the bears has been met — and that their plans for managing bears post-delisting are adequate to protect them — wildlife advocates are worried that hunting could once again cause widespread population decline. The Fish and Wildlife Service also directly has said that anti-predator legislation in states like Montana gives it cause for concern.
Grizzlies were delisted in 2017, after the Fish and Wildlife Service determined that they had “recovered biologically.” But a coalition of Native American tribes sued, arguing the federal government inadequately consulted with them and illegally ignored the tribes’ religious beliefs. Environmental groups later piled on.
In 2018 the State of Wyoming authorized hunters to kill 22 grizzly bears.
But a federal judge returned the species’ federal protection days before the hunt was supposed to start. He remanded the decision to the Fish and Wildlife Service, requiring the federal wildlife managers to determine whether delisting grizzlies in the Yellowstone area would harm “remnant” grizzly populations elsewhere in the lower 48.
The judge also required two things of the states, which were poised to take over grizzly management.
First, he required the states to come up with a plan for ensuring genetic connectivity between grizzlies in the Greater Yellowstone Ecosystem and other populations, like those in the nearby Northern Continental Divide Ecosystem near Glacier National Park — if the two populations didn’t connect naturally by themselves.
The judge, U.S. District Judge Dana Christensen, also required the states to come up with a way to recalibrate population targets if their methods of counting grizzlies changed.
“Almost every decision involving grizzlies is met with a lawsuit, and Wyoming has failed to provide any rationale why FWS should impatiently run headlong into a maelstrom without giving the decision the appropriate care and deliberation it deserves,” federal attorneys state in court documents.
Wyoming, Montana and Idaho have signed a memorandum of understanding attempting to address Judge Christensen’s concerns. In its legal filing, Wyoming accused the federal government of delaying action on the remand.
That’s why the state filed a petition to remove Yellowstone-area grizzlies’ protection, Jerde wrote, to require the U.S. Fish and Wildlife Service to complete its work and make a new decision on delisting.
But the heart of the matter in the lawsuit is that once a petition to delist a species is filed, federal law gives the U.S. Fish and Wildlife Service 90 days to issue a notice saying whether delisting “may” be warranted, after which it has nine months to make a final decision. In total, the agency has a year after the petition hits its desk to make a final decision on delisting. Then, there are typically multiple rounds of public comment while the Fish and Wildlife service finalizes a delisting rule.
It has been a year and eight months since Wyoming filed its petition. The Fish and Wildlife Service took over a year to make the initial 90-day decision.
Wyoming says that’s too long. The state wants a judge to force the federal agencies to make a decision in a month.
The state doesn’t agree that the Fish and Wildlife Service is swamped, working on four other grizzly-related projects: updating its 2021 assessment of grizzly populations; addressing the State of Montana’s petition to delist grizzlies in the Northern Continental Divide Ecosystem, which surrounds Glacier National Park; working to comply with court-ordered restoration of grizzly populations to the Bitterroot Ecosystem in central Idaho; and working with the National Park Service to consider reintroducing grizzly bears to the North Cascades Ecosystem, which is in Washington state and surrounds the national park of the same name.
A deadline is a deadline, the state said.
“Granting the request for an additional twelve months to make a final determination on the petition will reward Secretary Haaland and Director Williams for disregarding the mandatory twelve month deadline,” Jerde wrote, “and for apparently doing little or no work on the petition up to now.”
The state also lays out the case for making Haaland and Williams “publicly apologize for deliberately disregarding federal law,” but says it isn’t asking for that because it only will slow things down.
In response, the federal government says Wyoming doesn’t have standing to sue the Fish and Wildlife Service. Federal attorneys also say Wyoming misunderstands how difficult it is to reassign staff.
“The reality is that there is limited staff within FWS that has the expertise and knowledge to work on these grizzly issues. No one can be in two places at the same time,” federal attorneys wrote.
“Nor can FWS set aside other processes just so Wyoming can jump to the head of the line,” they continued. “After all, the other states and entities are just as litigious when it comes to grizzlies.”
The feds also attempted to bat back Wyoming’s assertion that they’d done no work on the petition, calling it a dishonest “assessment of FWS’s efforts and frankly counterproductive to grizzly bear recovery.” The feds regularly have attempted to address the remand issue through the Interagency Grizzly Bear Committee, they said.
“To be sure, there is disagreement and scientific debate within that forum, but Wyoming cannot truly contend that there has been a lack of effort to reach consensus on difficult management questions,” attorneys wrote.
This story was published on October 18, 2023.