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Grizzly decision celebrated, challenged

September 26, 2018

A federal judge’s decision to revoke the states’ authority to manage Yellowstone-area grizzly bears was met with expected cheers, jeers and challenges in the hours after it was announced.

Ruling out of a Missoula, Montana, court, U.S. District Judge Dana Christensen sided with conservation groups, animal rights advocates and Native American tribes on a number of legal counts, thereby blocking grizzly hunts planned to start Sept. 1.

“By refusing to analyze the legal and functional impact of delisting on other continental grizzly populations, the [U.S. Fish and Wildlife] Service entirely failed to consider an issue of extreme importance,” Christensen wrote. “Moreover, the Service’s analysis of the threats faced by the Greater Yellowstone grizzly segment was arbitrary and capricious.”

Christensen found that the U.S. Fish and Wildlife Service misinterpreted science about genetic connectivity and that the agency erred by allowing Wyoming, Idaho and Montana to change how they count grizzlies at some point in the future. Ultimately, he decided, the federal agency violated the Endangered Species Act when it decided to “delist” the 700 or so grizzlies estimated to live in the region.

Lisa Robertson, co-founder of the Shoot ’em with a Camera advocacy group, was sitting in her car in the Whole Grocer parking lot when word of Christensen’s ruling came in around 5 p.m. Monday.

“Two hours later,” Robertson said, “I was still there responding to all the phone calls and texts and emails and questions.”

“It was a truly powerful decision,” she said. “I believe the judge made a very thoughtful decision. I don’t think there are any politics or any emotion involved in that decision.”

Lifelong hunting outfitter Harold Turner, of Triangle X Ranch, flatly disagreed. Although he’s a self-described grizzly advocate who says they’re a “magnificent animal,” he operates in an area, the Teton Wilderness, where grizzlies are numerous and conflicts are many.

“My son on the first day of hunting saw nine grizzlies,” Turner said. “These decisions are made because of passion and people who have no idea what they’re talking about. That’s my feeling.”

Wyoming’s federal delegation, governor and wildlife managers were quick to scold the decision.

U.S. Sen. Liz Cheney provided more than just lip service on Tuesday introducing the “Grizzly Bear State Management Act.” The bill would reinstitute the Fish and Wildlife Service’s 2017 delisting rule that turned over management to the states and also prohibit environmental litigation from reversing that decision.

“The decision by a Federal District Court Judge in Montana to re-list the grizzly ignores science,” Cheney said in a statement, “and disregards the important work done by the state of Wyoming to establish an effective grizzly bear management plan.”

Earthjustice attorney Tim Preso, who was among the litigants, said that legislative efforts to trump judge’s orders and prohibit future lawsuits are legal. Wolves in the states of Montana and Idaho are currently in state control because of a similar approach by Congress.

“Congress has the ability to define the jurisdiction of the federal courts,” Preso said. “Not this many of these riders get through, but some of them do.”

U.S. Sen. John Barrasso used Christensen’s decision to make his much-belabored point that Congress should modernize the Endangered Species Act, relying more heavily on the states.

“This judge’s decision is wrong and unsupported by the facts,” Barrasso said in a statement. “Yet again, the courts are replacing science-based recovery measures with personal political preference. The grizzly is recovered in Wyoming. Period.”

Wyoming Game and Fish Department Director Scott Talbott called the ruling “unfortunate.”

“Game and Fish is a strong proponent of all wildlife management being led by people who live in this state and having management decisions made at the local level,” Talbott said.

Federal and state biologists have contended that the Yellowstone-area grizzlies are thriving, have adapted to changes in their diet and are among the best-managed bears in the world.

Grizzlies living in this region were classified as a threatened species in 1975, when the population was estimated as low as 136 animals after most bears were killed off early in the 20th century.

The Fish and Wildlife Service initially declared a successful recovery for Yellowstone’s bears in 2007, after years of meeting population goals, but a federal judge ordered protections to remain while wildlife officials studied whether the decline of a major food source — whitebark pine seeds — threatened the bears’ survival.

Under the Obama administration the federal agency concluded that it had addressed that, and all other threats, and concluded that grizzlies were no longer a threatened species requiring restrictive federal protections for the bears and their habitat. Before turning over management, the agency required the three states to coordinate with each other and set mortality- and population-based limits on hunting.

Christensen wrote that the fevered debate about grizzly bear hunting did not sway his decision.

“Although this Order may have impacts throughout grizzly country and beyond, this case is not about the ethics of hunting, and it is not about solving human- or livestock-grizzly conflicts as a practical or philosophical matter,” the federal judge ruled. “These issues are not before the Court. This Court’s review, constrained by the Constitution and the laws enacted by Congress, is limited to answering a yes-or-no question: Did the United States Fish and Wildlife Service exceed its legal authority when it delisted the Greater Yellowstone grizzly bear?”

The planned grizzly hunt was a sticking point for many groups that sought the now-successful litigation.

In the wake of Christensen’s ruling, Stanley Grier, chief of the Alberta-based Piikani Nation, invited U.S. Interior Secretary Ryan Zinke to discuss implementing a grizzly treaty that he said “presents the solutions.”

“The future of the grizzly bear and tribal, federal and state cooperation lies in the grizzly treaty,” Grier said in a statement. “With our sister tribes in the coalition of conscience, we prevailed today in defense of the sacred for our children and our future generations, and we did so without having to make some of our strongest arguments.”

Many conservationists, including Roberston, say they saw Christensen’s ruling coming. The same judge had twice delayed the hunts, and his latest order blocking them was due to expire later this week.

Jackson Hole wildlife photographer Tom Mangelsen was among the people who contested the grizzly hunt using civil disobedience. He applied for, and, against the odds, obtained a chance to hunt a grizzly, and had no intention of shooting one. The license that would have materialized is now moot because of the District Court decision.

“I think it’s a really great day for the bear,” Mangelsen said. “Grizzlies don’t belong to the Game and Fish, and they don’t belong to 22 hunters.”

Robertson, who popularized the tag-grab approach through the Shoot ’em with a Camera group, said that the ruling isn’t the end of the fight.

“We’re just beginning,” she said. “This is a new way of looking at wildlife management, and we’re dedicated to it.”

Mulling his successful lawsuit, Preso said that regional forces drove grizzly delisting but that the issue is of interest to people around the world. Two Sundays ago, he said, the fate of Yellowstone grizzlies was on the cover of Paris, France’s Le Monde newspaper.

“These aren’t decisions that have purely localized impacts, and this is globally significant,” Preso said. “I think we ought to aspire to have a recovery plan that recognizes that level of significance, as opposed to only the localized concerns of only a small subcomponent of the population.”

—The Associated Press contributed to this story

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