FWS fires an opening round in grizzly appeal

File photo

The U.S. Fish

and Wildlife Services filed their responses

in their appeal of a Montana judge’s order

to relist the Greater Yellowstone Ecosystem’s

grizzly bear population as endangered.

The appeal, which is joined by Wyoming,

Montana, Idaho and other interested

parties, was filed last year in the U.S. Ninth

Circuit Court of Appeals after U.S. District

Judge Dana Christensen ruled in a

summary judgment that FWS had not adequately

shown that delisting one population

segment would not affect others.

The Montana court’s ruling also said

that the FWS must review the entire listed

species and that its judgment that the GYE

population was “recovered” with genetic

variability was flawed. The resulting order

returned the GYE grizzlies to “listed” status

under the Endangered Species Act – and

Wyoming Game and Fish was forced to

cancel its first planned trophy-game hunt.

Wyoming, Idaho and Montana made a

tri-state agreement that guides management

singly and regionally.

The appeal is working through a long

process, with the federal government the

first party scheduled to respond to the Crow

Indian Tribe’s consolidated legal claims.

The state of Wyoming’s response – and

Idaho and Montana – is now due on Oct.

18, according to court records.

In its introduction, FWS says that

“thanks to decades of dedicated efforts by

a broad coalition of federal, state and tribal

agencies and scientists, the grizzly bear of

the Greater Yellowstone Ecosystem … is

now stable and secure with a population

estimated at about 700.”

The federal agency is “working on” the

need to “consider the effect of delisting the

GYE distinct population segment on the

rest of the species,” the response says.

“The (Montana) district court erred,

however, in ruling that FWS must conduct

a ‘comprehensive review’ of the entire

listed species,” it says, because that is not

required by the Endangered Species Act

“and because courts may not impose procedures

not required by statute.”

It continues, “The court further erred

in substituting its scientific judgment for

FWS’ in the matter of the bears’ genetic

fitness, in violation of the foundational

principles of judicial review of agency decision-

making.”

Much of the rest of the legal brief outlines

the history of grizzly bear decline and

recovery, past court challenges and processes

by which FWS determines a species’

status. It also outlines how the proposed

delisting rule published March 11, 2016

examined different strategies, definitions,

mortality and impacts, as well as the potential

factors of whitebark pine declines and

climate change.

“As a result of those studies and protective

measures, the rule concluded that

‘long-term genetic diversity is not a continued

threat to the GYE grizzly bear distinct

population segment,” it says.

The Crow Indian Tribe and others filed

their lawsuit on the same day that the FWS

released the final rule; five others were filed

and all were combined in the Montana District

Court.

On Sept. 24, 2018, Judge Dana Christensen

granted summary judgment against

the FWS, saying it had violated the Endangered

Species Act in three ways, according

to court records.

The court ordered a “comprehensive review

of the entire listed species,” next stating

that the FWS conclusion that the GYE

grizzly was not threatened by “inadequate

regulatory mechanisms” was arbitrary and

capricious. Third, the court disagreed with

the FWS conclusion “that the GYE grizzly

bear population is not threatened by genetic

isolation,” records show.

The FWS’ Sept. 17 response argues that

the Montana judge’s decision “improperly

imposes procedures not required by the

Act,” which is an “unwarranted, burdensome

directive,” asking for reversal of that

decision.

FWS also argues that its decision that

the GYE population was not threatened by

genetic factors “was supported by the best

available science.”

“The district court erred in substituting

its scientific judgment for FWS’s and

thereby imposing the court’s policy preference

for a …commitment to translocation”

rather than natural migration, it states.

FWS refers to a Washington, D.C. Circuit

Court decision in a gray-wolf suit

brought by The Humane Society of the US

versus DOI and Ryan Zinke. A month after

the grizzly suit was filed, that court agreed

that FWS has the authority to recognize and

delist a recovered segment of a listed species,

“as long as FWS addresses whether

the rest of the listed species remains protectable

under the (Endangered Species

Act).”

The brief also questions Judge Christensen’s

interpretation of two genetic

studies that he said the FWS had used incorrectly.

“The court blatantly substituted its own

interpretation of the genetic studies for

that of FWS biologists, opining that the

scientists at FWS ‘misread the scientific

studies’ and ‘did not interpret that science

rationally,’” it says. “… The district court

obviously disagreed with FWS’ decision to

facilitate natural connectivity rather than

committing to translocate bears by a fixed

date.”

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