The 9th U.S. Circuit Court of Appeals on Wednesday agreed that the U.S. Fish and Wildlife Service erred in moving to delist Greater Yellowstone Ecosystem grizzlies from the Endangered Species Act/NPS file
Politics and a lack of sound science played roles in the U.S. Fish and Wildlife Service's attempt to remove Endangered Species Act protections from Greater Yellowstone Ecosystem grizzlies, a unanimous 9th U.S. Circuit Court ruled Wednesday in upholding a lower court's decision that blocked the delisting.
The ruling threw cold water on an Interior Department claim made Tuesday that the recovery of grizzly bears in the lower 48 states "is an amazing success story due to collaborative conservation efforts led by federal, Tribal, state and other partners."
The 9th Circuit's decision upheld the lower court's finding that the Fish and Wildlife Service in 2017 had not used sound science in judging that the Yellowstone grizzlies were not threatened by a loss of genetic diversity. It also ruled that the agency must determine whether delisting the Yellowstone population would have any impact on grizzly populations elsewhere, and must commit to a "recalibration" method that won't skew future estimates of the species' population in the ecosystem.
In 2017 the wildlife agency had removed the Yellowstone-region grizzly bear population from the federal endangered and threatened species list, even though the area’s grizzly population had suffered high levels of human-caused deaths in recent years.
“This is a tremendous victory for those who care about Yellowstone and its grizzly bears," Tim Preso, an attorney with Earthjustice who argued the case, said Wednesday. "The court rightfully rejected the misguided proposal to subject Yellowstone grizzlies to trophy hunting for the first time in 40 years. The grizzly is an icon of our remaining wildness at a time when our wilderness is shrinking and our wildlife is under assault.”
The three-judge panel of the 9th Circuit dismissed the Fish and Wildlife Service's argument that it had used sound science in determining the population's genetic diversity was not at risk by using the very same literature the agency had used to defend its position.
"... both studies express concerns about the long-term genetic health of the Yellowstone grizzly. (The authors) state that, 'the genetic consequences of inbreeding and isolation are likely to transpire over longer time periods (decades and centuries),'" the court pointed out.
Another study Fish and Wildlife Service used to defend its position noted that "the Yellowstone grizzly 'may eventually approach the long-term viability population criterion,' but it has not yet done so," the 9th Circuit ruling said.
"Recalibration" refers to how the Yellowstone ecosystem's grizzly population is estimated. The so-called Chao2 estimator currently being used factors in numbers of grizzly sows not observed by researchers working on estimates. However, it is viewed as being too conservative, and that the grizzly bear population could be substantially higher than the nearly 700 bears thought to be in the ecosystem.
If the population is, for example, actually 1,100 bears, then quotas for hunters could be higher. As a result, there could be pressure down the line to move to a more liberal estimator that could allow Wyoming, Montana, and Idaho to sell more bear hunting licenses. Officials in those states had opposed inserting a recalibration commitment in the Conservation Strategy being drafted for the Yellowstone grizzlies.
In his September 2018 ruling, U.S. District Judge Dana L. Christensen said that the Fish and Wildlife Service acted arbitrarily and capriciously by refusing to commit that any future approach to estimating grizzly numbers in the ecosystem is "calibrated" to the approach to justify delisting.
The district judge, the 9th Circuit's ruling noted, held that the agency's decision to "drop the commitment to recalibration in the Conservation Strategy violated the ESA, because it was not made 'solely on the basis of the best scientific and commercial data,' but instead was the result of political pressure by the states."
"The district court’s conclusion was based upon a careful analysis of the record, which contained several email exchanges between FWS employees, including the former Director of the FWS and the former Grizzly Bear Recovery Coordinator, who acknowledged that failing to include a recalibration commitment would be a 'showstopper' and would result in a 'biologically and legally indefensible' delisting of the Yellowstone grizzly," the 9th Circuit said.
“The importance of this court ruling for the grizzly bears found in our most iconic national parks cannot be overstated,” said Stephanie Adams, Northern Rockies associate director for the National Parks Conservation Association. “This decision sets the stage for practical, science-based and on-the-ground collaboration to ensure a healthy future for grizzlies in Grand Teton, Yellowstone and beyond. And now, communities can continue their work to create opportunities to safely connect the grizzly bears of Yellowstone and Glacier.”
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Yes! I certainly cheer this ruling. I cheered the previous decision that "the Fish and Wildlife Service in 2017 had not used sound science in judging that the Yellowstone grizzlies were not threatened by a loss of genetic diversity" and I now cheer the 9th Circuit's decision to uphold that decision. For me, even beyond the population estimating details of the case, there are three strategically important factors embedded in both of these decisions.
First, these decisions reflect a recognition of the danger posed by gene pool depletion and inbreeding to this and, by precedent, every species where a reasonable, scientifically based, assessment by a properly qualified and objective observer makes the case that effective breeding populations have been brought so low as to risk damaging gene pool depletion effects.
Second, these decisions reflect a recognition that species conservation decisions, including listing and delisting decisions, must consider the long-term viability of the species, specifically including the genetic consequences of inbreeding and isolation that are likely to transpire over longer time periods. And those longer time periods are specifically defined as extending into future centuries!
Third, although what can be considered a long-term genetically viable breeding population varies between species, their lifespans, their reproductive rates, and their survival rates; these decisions also reflect a recognition that, whether the size of this population segment is "nearly 700 bears" or "actually 1,100 bears," the way in which a population is estimated must be "calibrated" to delisting criteria and, by inference, to conservation decisisons in general, which will ultimately open the application of the first two recognitions above to wildlife management more broadly.
Now, steve reed, in his comment of July 8, 2020 - 7:48am on the news item entitled, UPDATE | Interior Secretary Ends Work To Help Recover Grizzlies In North Cascades, expressed his view that this decision effectively vacates the delisting of grizzlies in both the GYE and North Cascades, implying that recovery planning for the population in the North Cascades must move forward. After the past forty years of republican dirty tricks on environmental issues, I wish I could be so confident. However, he may be correct and, if so, he would also be correct that hunting seasons sponsored by state game departments in the lower 48 states will not be happening, at least in the foreseeable centuries. I hope so.
Thanks Mr Ploughjogger. One update though, the delisting precedent concurrently applies to the Northern Continental Divide Ecosystem (Glacier National Park) as well as GYE, with said North Cascades decision. Any alledged "surplus" bears from GYE OR NCDE could now be translocated (rather than terminated) to repopulate and diversify North Cascades (all of these acronyms and the miniscule font herein are confusing), as well as enhancing the Cabinet-Yaak, Selway-Bitterroot, and Selkirk Ecosystem bears without the tribulation of waiting for natural corridor migration to do so. I also hope the Supreme Court will see the futility in any attempted appeal of this proclamation and so decline to hear it. Next up is the San Juans in my home state of Colorado...maybe even Rocky Mountain National Park; Enos Mills would love it!
Once again, thank goodness for the 9th Circuit!
Thank you for the update, Mr. Reed. As you may have noticed, I am, at least, at this somewhat dismal point in our human development and understanding of our collective conservation biology responsibilities, very focused on protecting what's left of our wild gene pools, whether in bears, wolves, bison, trout, stoneflies, or even rare buckwheat. So, I welcome your perspective on how this ruling and others might strengthen our ability to translocate "surplus" bears from one beleaguered population segment to another. This would greatly help forestall further genetic depletion while we wait for human evolution and enlightenment to catch up and once again allow natural migration, intermixing, and new diversification.
I also welcome your efforts and help in expanding the public's recognition of the current crisis in wild gene pools. Even as conservationists, we know the importance of genetic diversity, in both the near and longer terms; but, we don't always effectively act on what we know and the broader public has no real grasp of the issue whatsoever. We often fail to fully acknowledge either the risks of inbreeding or the limits of current science to reliably predict or even recognize the depth of the problem before irreparable damage is done. We often "assume" that, if "some" individuals survive, then they can just reproduce ...and they will ...to some extent and for a time.
We consistently fail to "err on the side of caution" in sustaining populations large enough to guard against gene pool loss and inbreeding and this failure is putting too many species at risk even before the most serious effects of climate change even begin to manifest themselves. As a result, we are already ushering in the next global mass extinction event, regardless of what is or is not the ultimate outcome of clearly imminent climate change.
Glad for the ruling, but I'm sure this will be heard by the Supreme Court. I'm sure ranchers/stock grower associations around Greater Yellowstone have a lot to do with USFWS wanting to de-list "Griz." I understand ranchers not wanting "Griz" around their cows. Best estimates is there are over 1000 Grizzlies in the GYE. Compromise has to be made with all sides between USFWS/Ranchers/Stock Grower Associations/conservationalists/outdoor enthusiasts/etc. This is a complicated lands issue that has roots going back to Western Settlement Of the Mid-Late 1800's.
Joshua, I'm afraid that whether "there are over 1000 Grizzlies in the GYE" or not, their numbers have already been brought so low, too low even if their numbers were many times any credible current estimate, that we have to acknowledge that they've already suffered severe past gene pool depletion and are already at risk of inbreeding effects. Population numbers in the strains of these bears that are native to the lower 48 states are still far too low to reliably secure them against further threats posed by or exacerbated by any further loss of genetic diversity. The courts have now properly recognized this; the courts have now properly recognized the dangerous consequences of inbreeding and isolation, how these effects are likely to transpire over longer time periods, and how responsible wildlife conservation depends on sustaining long-term genetically viable breeding populations for these bears as well as all other wildlife species. And, the courts have also now properly and specifically defined long-term viability as extending into future centuries.
With regard to whether this ruling will be heard by the Supreme Court, it would not surprise me, although I'm not as seemingly enthusiastic about that possibility as you. As far as your insistence that compromise "has to be made with all sides" goes, I fear that the time for such compromise was back when bear numbers, along with the numbers of so many other wildlife species, were much, much, higher and that ranchers and stock grazers missed their chance when they tilted the scales so very far out of balance back then. Perhaps a time for compromise will come again, when the numbers of this and many other wildlife species are far, far higher in the future. But, that will take a long time. It will take such a long time because, back when those ranchers and stock grazers were left alone to impose their own brand of stewardship, they did so much damage, so much damage that it will take a very long time to heal.
By the way, Joshua, your use of the term "conservationalist" and not the more common "conservationist" is interesting and so is your reference to the "Western Settlement Of the Mid-Late 1800's" using exactly those words. I'm sure it's news to you; however, that terminology matches "code words" used in rightwing calls to action in communications related to the occupation of Malheur National Wildlife Refuge in central Oregon and in related communications involving the Bundy family. I'm very sure it's just coincidence, perhaps just a regional manner of speaking, just interesting.
Josh ---Your 'compromise must b e made with all sides" is one of those "how to deal oneself into a closed game" comments. If it's the normal turf for the bear, why deal in cattle ranchers?