State won’t cross feds, illegally hunt grizzlies

May 1, 2019

Wyoming wildlife officials opted last week not to hunt grizzly bears in violation of the Endangered Species Act, citing the federal government’s legal supremacy.

Deliberations of a prospective grizzly bear hunt came at the behest of the Wyoming Legislature, which passed a bill last session that authorized state wildlife officials to hunt grizzlies in spite of the species’ “threatened” federal status. The Wyoming Game and Fish Commission had that discussion last week, unanimously deciding not to direct the Wyoming Game and Fish Department to draw up hunting regulations.

Commissioner Patrick Crank, a Cheyenne attorney, explained to his fellow board members that 230 years of case law supported the U.S. Constitution’s Supremacy Clause, which establishes the precedence of federal laws over state law.

“The Endangered Species Act, sometimes unfortunately, it is the law of the land in regard to endangered species,” Crank said April 24 in Riverton. “If we were to exercise our discretion, as directed by the Legislature to enact a hunting season, we could do that, I guess.

“But the practical effect of that is we would throw our citizens into an untenable situation, which I don’t feel comfortable doing as a commissioner,” he said. “We [could] put someone who bought one of those licenses and went out and killed a grizzly bear in harm’s way, because the federal government will prosecute that person and stick them in jail.”

Widely viewed as symbolic, the Legislature’s passage of Senate File 93 was born from frustration about litigation that has kept the Greater Yellowstone Ecosystem’s grizzlies under federal control years after recovery criteria were met. Twice in the last dozen years the 700 or so bears estimated to live in the region have been “delisted.” But both times, including in 2018, successful lawsuits have restored Endangered Species Act protections, precluding a hunt.

Reps. Jim Roscoe, I-Teton, Sublette, Lincoln, and Andy Schwartz, D-Teton, and Sen. Mike Gierau, D-Teton, voted for the bill, while Rep. Mike Yin, D-Teton, opposed it.

Five days after Gov. Mark Gordon signed the bill into law, environmental advocacy groups announced their intent to sue. Erik Molvar, who directs one of the groups that signed on, Western Watersheds Project, said that because of the commission’s decision a lawsuit is no longer necessary.

“Since the state of Wyoming is not moving forward with the grizzly bear hunt,” Molvar said, “they are in compliance with the Endangered Species Act, and everybody should be happy.”

Before the commission voted, Game and Fish biologists presented information to help commissioners decide whether two conditions from the legislation were met that could justify a grizzly hunt. According to the state statute, those factors are whether grizzly hunting would benefit Wyoming’s other wildlife and if hunting would make Wyoming workers, citizens and tourists safer.

Discussing the effects of grizzly predation, Game and Fish carnivore biologist Dan Bjornlie said that grizzlies are a major predator of fawn and calf elk, deer and moose in the spring. But research has found that some grizzlies don’t eat young, vulnerable ungulates at all, he said, and the bears that do have a brief, two-week window before elk calves and deer fawns grow and are too fast to catch.

There are many environmental complexities that make it difficult to say precisely how grizzlies affect an ungulate population, he said, especially in areas with several species of large carnivores.

“It makes it difficult for the department to ... say, ‘All we have to do is X, [and] we can reduce the bear population here and we’ll have better hunting and a higher elk population,’” Bjornlie said.

Game and Fish’s large carnivore supervisor Dan Thompson took on the topic of human safety. As grizzlies expand into the more developed fringes of the ecosystem, conflicts with people are more likely, he said. On average, four to five humans are injured annually by grizzlies in the region.

“Grizzly bears are inherently aggressive,” Thompson said. “There is a natural aggression we see in [Greater Yellowstone Ecosystem] grizzly bears. There’s not much of a flight response, it’s more fight.”

Commissioners unanimously agreed that the legislation’s criteria justifying a hunt were met.

“I feel very comfortable making a finding that grizzly bears — not solely but cumulatively with the other predators we have in Northwest Wyoming — are having an impact on other wildlife populations,” Crank said.

The Game and Fish Commission’s no-vote on pushing forward with a hunting season was possible because the new state law is permissive, using “may” in its language and not “shall.”

Before moving on, Commissioner David Rael, of Cody, asked Crank why individual states were able to legalize marijuana, when it’s classified as an illegal controlled substance under federal law.

“That debate is still ongoing,” Crank said. “The federal government just chose not to come in and enforce the federal law. I suspect that the decision whether to prosecute someone who caps a grizzly bear will be much easier than [with] a dope smoker in Colorado.”

Rael said he knew marijuana was a bad comparison, but that it was a valid point he needed to make.

“I don’t want to go against the federal government,” he said. “I know the Endangered Species Act is something we will adhere to.”