Judges question Wyoming’s case for grizzly numbers

A federal appeals panel May 4 questioned Wyoming’s contention that Yellowstone area wildlife managers should keep the population goal for ecosystem grizzly bears unaltered if they change the method of counting them. Grizzly advocates say inflating the population estimate by swapping models but not adjusting the population goal could lead to the death of some 500 bears.

Arguments last week in the long-running dispute over federal grizzly bear protections covered everything from genetic health of the Yellowstone population to commitments to transplant bears among ecosystems. The case involves aspects of the federal Endangered Species Act. The counting method and related population goals were major points in Wyoming’s arguments that the bears should no longer receive ESA protections.

Regional wildlife managers’ method of estimating the grizzly population won’t change soon, Wyoming’s attorney, Jay Jerde, a special assistant to the state attorney general, told the panel.

State and federal managers in and around Yellowstone National Park will continue to use the Chao-2 method to estimate the population. Scientists widely agree the scientific model is conservative and underestimates populations.

Abandoning Chao-2 for another estimator, “that’s not going to happen in the foreseeable future,” Jerde told the three-judge panel during a virtual meeting of the Ninth Circuit Court of Appeals in Portland. For the robed judges, visible on computer screens in what looked like their homes, Jerde defined “foreseeable future” as a period during which scientists “can reliably make predictions without veering into speculation.”

Grizzly advocates fear that if wildlife managers adopt a new way to estimate the number of bears, it will dramatically increase the official population count. They want a corresponding recalibration of the number of grizzlies set as a management goal, which today is 647. Discretionary mortality — the number of bears that may be killed through human-caused unnatural actions without jeopardizing the species, is based on the difference between the population estimate and management goal.

In using a new estimator, “you’re jumping… from about 700 bears to 1,200 bears,” said Matthew Bishop, the Rocky Mountain office director for the Western Environmental Law Center.

Using a new estimator without also recalibrating the management goal, “you can kill an extra 500 bears,” he said. “That’s not legally or biologically defensible.”

Judge challenges Wyoming

Despite Jerde’s statements that counting methods won’t change in the “foreseeable future,” Judge Paul J. Watford appeared not to buy his assurances. The ESA requires grizzly managers to use “best available science.” Yellowstone wildlife managers have already discussed new ways of estimating grizzly numbers.

“There are strong indications in the very near future a new population estimator will be adopted,” Watford said. “In theory in five years you all could come along and say ‘Hey, science has changed and we’ve got these much better more accurate population estimators … the foreseeable future has arrived.

“The future language … that doesn’t really count for much at all,” Watford said.

A Chao-2estimated 737 grizzly bears in 2019 roamed the 19,270 square-mile demographic monitoring area, the area where the bears are counted for ESA compliance. Wildlife officials’ management goal of 674 provides a buffer to the ESA requirement of at least 500 bears. Wyoming stock growers and others want the federal government to hew close to that 500 number, which was set after grizzlies were declared a threatened species in the Lower 48 in 1975.

A keystone 2003 genetics study by Craig R. Miller and Lisette P. Waits said, among other things, that “management should … focus on maintaining the [Yellowstone Ecosystem] and [Montana’s Northern Continental Divide Ecosystem] populations at or above their current sizes.” They estimated there were up to 610 bears in the Yellowstone ecosystem at that time.

In 2017 the U.S. Fish and Wildlife Service removed federal Endangered Species Act protection for Yellowstone ecosystem grizzlies. It did not commit to resetting the population management goal — a process known as recalibration — if new population estimation models are employed. A consortium of Native American tribes, environmental and conservation groups challenged that decision saying the USFWS exceeded its legal authority. The suits were consolidated as Crow Indian Tribe vs USA.

On the eve of Wyoming’s planned grizzly bear hunt in September 2018, U.S. District Judge Dana Christensen in Montana vacated the service’s delisting rule and restored endangered species protections to Yellowstone ecosystem grizzlies. He saw the lack of a recalibration guarantee as a problem.

“In other words, if a new model estimates 1000 bears where Chao2 found 700, the states will be able to treat the jump in population as they would treat it on paper — as if 300 new individuals had moved into the Greater Yellowstone Ecosystem,” Christensen wrote. But there’s no guaranteed recalibration, he wrote, calling that a failure that “is irreconcilable with the ESA….”

An isolated population

Christensen also took a dim view of the government’s 2017 abandonment of a commitment to transplant grizzlies in the face of challenges to the isolated population’s genetic diversity. The lack of a guarantee — there’s only a pledge to consider transplants — endangers the long-term survival of the population, he wrote.

“This [2017] modification was made not on the basis of the best available science, as demanded by the ESA, but rather as a concession to the states [Wyoming, Idaho and Montana] in order to reach a deal,” his 2018 remand order reads. The USFWS “failed to demonstrate that genetic diversity … has become a non-issue,” he wrote.

Among other flaws in delisting, the agency erred when it did not consider impacts to other Lower 48 grizzly populations, he wrote. USFWS also didn’t properly apply a five-threat matrix to the population as the ESA requires, he wrote. Christensen ordered the agency to reconsider its de-listing decision.

The federal government appealed, along with Wyoming, sportsmen’s groups, ranchers, plus the tribes and conservation and environmental groups. The federal government limited its appeal, accepting recalibration but challenging parts of the order to review the status of grizzlies outside Yellowstone called “remnant’ populations.

Wyoming challenged all of Christensen’s conclusions. It asked the Portland appeals panel to reinstate the 2017 delisting rule that Christensen overturned and let Wyoming manage its share of Yellowstone ecosystem grizzlies.

Wyoming holds fast

“The best scientific information available confirms that the Yellowstone Segment is recovered, and has been so for more than a decade,” Jerde wrote in an appellate brief. “A population that once may have had as few as 136 grizzly bears now has around 700 bears, about 200 more than is required for the Segment to be recovered. The Yellowstone Segment no longer needs ESA protections…”

In the virtual Portland hearing, judges immediately questioned whether Wyoming could appeal elements of Christensen’s decisions when the federal government had accepted many of his points. The federal government is the lawsuit’s defendant; Wyoming is an intervenor.

The state can’t appeal Christensen’s order because it is not a final order — it’s a remand, Judge Andrew Hurwitz told Jerde.

Not letting a state or states appeal amounts to “preemption of their sovereignty,” Jerde told the panel. Jerde outlined the consequences of Wyoming not winning its recalibration argument.

Under his scenario, the USFWS would propose relisting with recalibration. States would refuse to join a conservation plan under those conditions and the government would not delist the grizzly. Wyoming would then have to go to court all over again to seek reinstatement of the 2017 delisting rule.

Jerde made other points while fending off Watford’s criticism of “foreseeable future” language. Provisions in a binding conservation strategy would prevent the hundreds of grizzly deaths envisioned by Bishop and others, Jerde said.

Wyoming’s attorney admitted there is a commitment among wildlife managers to continue working on a new population estimation method. But recalibrating the population goal is not a requirement of the ESA, Jerde told the court.

Wyoming will consider, not promise, recalibration if the genetic health of the ecosystem population is troubled, he said. That’s “the most reasonable commitment the state can make.”

Further, Wyoming can’t unilaterally change counting methods — three states and four federal agencies must agree to a change, he said. There should be no worry about transplanting bears to Yellowstone in the case of a genetic crisis, Jerde said, countering another of Christensen’s arguments.

The USFWS agreed in a preamble to its 2017 delisting rule “there will be translocation” if necessary, he said.

Long term health

Bishop, the WildEarth attorney, said there’s no guarantee in federal and state plans that ensures transplants to maintain genetic health. Transplants to the isolated Yellowstone population could take place if the bears don’t intermingle among ecosystems on their own.

The lack of a guarantee is a scientific problem, Bishop said.

“Not a single paper has said they’re OK in the long term,” Bishop said of Yellowstone grizzlies. He likened wildlife managers’ agreement to consider transplants to his daughter agreeing to consider doing dishwashing chores after dinner.

“There is no commitment now to translocate,” Bishop said. Further, “there’s a lot of resistance to restoring connectivity” among ecosystems — links that would allow genetic interchange naturally. The federal government wanted guarantees of no hunting in connection corridors “and the states refused,” Bishop said.

Bishop also challenged the notion that transplants are a legitimate method of preserving a species under the ESA. Relying on transplants instead of natural migration “undermines the whole idea” of endangered species recovery, he said.

The federal government’s attorney, Joan Pepin, said grizzlies from different ecosystems “keep getting closer and closer.” However, “there has been no actual connection,” she agreed under questioning. Regarding transplants, “nobody really opposes doing it if it is needed,” she said.

Pepin assured the panel that delisting Yellowstone ecosystem grizzlies would not lead to delisting other Lower 48 grizzlies. There will not be “an accidental two-for-one delisting,” Pepin said. Wyoming contends the status of remnant populations is irrelevant to Yellowstone grizzly delisting.

Hurwitz pressed for clarity on the point. “There’s five lawyers here today,” he said. “You all agree the remnant should remain listed.” There’s been “a lot of briefing, a lot of ink, a lot of argument. I’m trying to figure out whether we have a controversy.”

Christensen is making Fish and Wildlife do more than the ESA requires, Pepin said. He is essentially requiring it to examine every aspect of every grizzly ecosystem in the Lower 48 before it can delist Yellowstone grizzlies.

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Christensen is “imposing an obligation on the service that is not required in the statute,” she said. USFWS, for example, doesn’t need to do an inventory of food resources in the Selkirk Ecosystem, a Lower 48 grizzly recovery zone, as part of Yellowstone delisting, she said.

Judges also heard from Tim Presso, who represented grizzly advocates, and Robert Aland, a Jackson and Chicago-area attorney representing himself.

Pepin said she “can almost guarantee” the issue would be back in court. Said Judge Mary Schroeder, “I’m sure of that.”