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Government, Advocates Spar Over Fate of Yellowstone Grizzly (1)

May 5, 2020, 7:52 PMUpdated: May 5, 2020, 8:34 PM

Federal judges struggled to determine Tuesday whether government officials must do more to justify scrapping protections for grizzly bears around Yellowstone National Park.

The U.S. Court of Appeals for the Ninth Circuit heard oral arguments in a complex dispute between the Trump administration and advocates from American Indian tribes and the environmental community.

The case centers on Endangered Species Act protections for Yellowstone grizzlies, a distinct group of the threatened species in and around the national park in Montana, Wyoming, and Idaho.

The U.S. Fish and Wildlife Service delisted the Yellowstone group in 2017, but a federal district court struck down the decision on multiple grounds, including that the agency didn’t adequately weigh how reduced protections for the group would affect the broader grizzly species.

The federal government and its allies, including Wyoming and sportsmen groups, are asking the Ninth Circuit to reverse all or part of that decision.

The legal dispute turns on whether Fish and Wildlife Service complied with the Endangered Species Act’s requirement to use the best available science in decisions about federal protections.

The court’s ruling could have broad effects on how the federal government weighs protections for other species, and the extent to which judges should defer to Fish and Wildlife Service’s use of science.

How ESA ‘Is Supposed to Work’

The federal government accepted part of the district court’s decision, agreeing to preserve protections for now and study the broader species impacts of delisting the Yellowstone bears.

But it wants the Ninth Circuit to nix other parts of the 2018 ruling, including a court-ordered “comprehensive review of the entire listed species” and the judge’s rejection of the Fish and Wildlife Service’s analysis of genetic threats to the bears.

“This is how the Endangered Species Act is supposed to work,” Justice Department attorney Joan M. Pepin said, arguing that delisting decisions don’t harm species, but instead show that previous protections have been successful.

The government first protected grizzly bears in the lower 48 in 1975. At that time, the Yellowstone population had just 136 individuals; the number is now around 700.

The district court should have accepted the government’s understanding of the applicable science, government lawyers told the Ninth Circuit, rather than substituting its own judgment.

Judge Andrew D. Hurwitz said he struggled to see “what we’re fighting about” if everyone agrees the broader grizzly species should be protected.

Hurwitz and Senior Judge Mary M. Schroeder also questioned Wyoming lawyer Jay Jerde on why the state should be able to pursue legal arguments in its appeal that the federal government itself isn’t pursuing.

Jerde responded that Wyoming and other states would otherwise be robbed of the opportunity for judicial review of a district court ruling that, in their view, tread on their sovereignty.

The state helps to implement conservation plans for the bears and was planning a grizzly hunt before the 2018 decision came down.

‘Backdoor’ Delisting

On the other side of the fight are the Northern Cheyenne Tribe, Crow Indian Tribe, conservation groups, and other advocates who want to preserve protections for the Yellowstone grizzlies.

Earthjustice attorney Timothy Joseph Preso, representing the Northern Cheyenne and environmentalists, said the agency is simply contesting parts of the district court’s opinion “that the government doesn’t like.”

He urged the Ninth Circuit to uphold the lower court’s decision and affirm that the government must not only study the on-the-ground impacts of a potential Yellowstone delisting on the broader species, but the legal impacts of such a decision—specifically, whether delisting the group could threaten the “listability” of the broader species.

Schroeder pressed the government’s lawyer on the issue.

Pepin responded that the Fish and Wildlife Service is committed to doing the full analysis to ensure there is no “backdoor” delisting of the broader species. She urged the court to “let the Service” apply its expertise to craft a solution.

Western Environmental Law Center attorney Matthew Bishop, representing conservation groups, zeroed in on the agency’s analysis of genetic threats to the Yellowstone grizzlies, saying it ignored long-term threats.

The agency said it would consider “translocating” bears in the future to strengthen the group.

“I guess I don’t see what the problem is with that,” Judge Paul J. Watford said. “They’ve done as much as one would expect as of today, given what the science tells us, haven’t they?”

BIshop responded that the agency’s vow to consider translocation falls far short of a commitment and thus doesn’t ensure the long-term health of the Yellowstone bears.

The case is Crow Indian Tribe v. USA, 9th Cir., No. 18-36030, oral arguments 5/5/20.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rebecca Baker at rbaker@bloombergenvironment.com

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