The U. S. Fish and Wildlife Service in 2007 removed Endangered Species Act protection for grizzly bears in the Greater Yellowstone Ecosystem. The federal district court in Montana invalidated the delisting in 2009 after thorough litigation in which Idaho, Montana and Wyoming fully participated; in 2011 the Ninth Circuit Court of Appeals affirmed that decision. The decisions were based on scientific evidence, the ESA standard for delisting.

The Fish and Wildlife Service, under pressure from politicians, state officials, ranchers and others, again in 2017 removed the bears’ ESA protection. Litigation against the federal agency followed; the three states participated fully; and the same courts in 2018 and 2020 invalidated the delisting based on scientific evidence.

Two definitive lawsuits usually would bring a legal controversy to an end, but that has not happened with regard to the beleaguered Greater Yellowstone grizzly bears. Instead the bears’ foes have begun a new campaign to remove ESA protection.

Rep. Liz Cheney and Sen. Cynthia Lummis recently introduced identical bills, H.R. 1403 and S. 973, the “Grizzly Bear State Management Act of 2021.” These bills are radical. They trample on both the separation of powers by requiring the executive branch (i.e., the FWS) to reissue the delisting and precluding the judicial branch’s right to review the delisting and the public’s statutory right to participate by precluding public comments.

Cheney’s press release states that “the federal government or unelected judges and bureaucrats should not be in the business of telling us how to operate.” Bill sponsoring senators Steve Daines’ and James Risch’s press releases rail against “activist judges.” It is sad, especially in these turbulent times, that elected officials are willing to generate disrespect for the federal government and the federal judiciary.

Cheney states that H.R. 1403 would “stop the abuse of the court system by environmental extremists.” The “environmental extremists,” however, prevailed twice based on scientific evidence and legal principles. The Fish and Wildlife Service compiled evidentiary records of 55,000 pages for the first litigation and 350,000 pages for the second. The federal agency and the three states were a formidable team; they lost. The judicial system worked perfectly.

The real “abuse” was the decision by the Fish and Wildlife Service, under pressure, to issue the second delisting, after losing the first litigation, instead of accepting the outcome. That decision, reflecting the FWS’s and states’ lack of respect for the judicial process and rule of law, wasted the financial and human resources of all participants and the judicial system.

The recent bills’ trampling on the public’s right to submit comments no doubt is motivated by the desire to hide the public’s overwhelming opposition to removal of the bears’ Endangered Species Act protection. Over 195,000 comments were submitted by the public in response to the 2007 delisting. According to Fish and Wildlife Service statistics, 99.3% of commenters, including 90.4% from the three states, opposed delisting. Nevertheless the FWS issued the 2007 delisting and arrogantly proclaimed that public comments were not a “vote count” or “binding referendum.”

The public submitted an astounding 665,000 comments in response to the 2017 delisting; no doubt public sentiment was as overwhelming as it was earlier. However the FWS, shielding this sentiment from the public’s radar, did not prepare statistical analyses, stating that it was “no longer common practice for us to analyze public comments in [that] way.”

The press releases assert that the bears have recovered. However the evidentiary record tells a different story. For example, the world-famous biologist Dr. Jane Goodall, writing for herself and 65 other biologists, stated that “[the FWS] is not scientifically justified in concluding with certainty that the population has reached long-term stability and is therefore secure for the foreseeable future. There is far too much uncertainty reflected in the current science to justify such a conclusion; rather, the best available science and the precautionary principle demand continued federal monitoring of this vulnerable population, which will only happen with continued ESA protection.”

Lummis’ press release states that the GYE grizzly bear population “is at or near its max capacity for the habitat.” However she disregarded Fish and Wildlife’s statement in the 2017 delisting that “carrying capacity . . . has never been one of our recovery criteria” and substantial record evidence that supports carrying capacity of 5,000 or more grizzlies in the vast Greater Yellowstone Ecosystem.

The title of H.R. 1403 and S. 973 and the press releases extol the abilities of Idaho, Montana and Wyoming to “manage” grizzly bears after delisting. Not true. In 2016 the three states entered into a memorandum of agreement divvying up “discretionary mortality” (i.e., “trophy hunting for fun and profit”) of GYE grizzly bears among the three states. The grizzly bear population could have been reduced to 500 by trophy hunting if the agreement had gone into effect. It is incomprehensible that such a morbid, anti-wildlife agreement could exist in this country.

Significantly, on March 31, 2021, the FWS released its “5-Year Status Review,” based on a separate 368-page biological report. Conclusion: “Our review of the best available scientific and commercial information indicates that the grizzly bear in the lower 48 states does not meet the definition of an endangered species, but does meet the definition of a threatened species. ... We recommend that the grizzly bear in the lower 48 states retain its status as a threatened species under the [ESA].”

Despite Fish and Wildlife’s finding in the review that 737 grizzly bears currently populate the Greater Yellowstone, a senior federal official recently asserted publicly that the mathematical formula used to determine population size “suffers from an underestimation bias” and that the number of bears in the GYE is “well over 1,000.” That self-serving statement should be disregarded in the current anti-grizzly campaign.

Why did Cheney and Lummis introduce H.R. 1403 and S. 973? What constituents are they trying to please? Those who seek access to the bears’ habitat? Ranchers who sometimes lose cattle grazing on public lands?

Cheney and Lummis should withdraw their pernicious bills; and they and their like-minded colleagues should stop their Captain Ahab-like pursuit of the iconic grizzly bears.

Robert H. Aland, a retired lawyer and resident of Winnetka, Illinois, and Wilson, was a plaintiff in litigation that invalidated the U.S. Fish and Wildlife Service’s 2007 and 2017 final rules removing Endangered Species Act protection for Yellowstone grizzly bears. Guest Shots are solely the opinion of their author.

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