The 9th Circuit Court of Appeals overturns the delisting of Grizzly Bears

The 9th Circuit Court of Appeals upheld in part, and overturned in part, a Montana federal district court’s decision maintaining Endangered Species Act protections for Grizzly Bears.

Court says Yellowstone grizzlies still threatened – AP

The ruling from the 9th U.S. Circuit Court of Appeals blocks the federal government’s effort to lift protections on about 600 threatened grizzlies across 19,000 square miles of Montana, Wyoming and Idaho. Such a move would have turned over management of the animals to state wildlife agencies and allowed hunting for grizzlies for the first time in decades.

But the judges said a significant threat to the bears’ recovery has emerged in recent years as whitebark pine trees have declined.

The circuit court maintained that the U.S. Fish and Wildlife Service’s failure to adequately consider the effect of the decline in whitebark pine, a chief food-source for bears looking to put on fat prior to hybernation in the winter, was inadequately supported by reason, upholding a Montana district judge Donald Molloy’s prior decision.

One particularly promising note about this decision’s potential contribution to species recovery is the court’s denial of the U.S. Fish and Wildlife Service’s rationale dismissing whitebark pine loss as a threat given they lacked data indicating a decline in bears due to pine loss.

The lack of any data showing a population decline due to whitebark pine loss is not enough. See Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 879 (9th Cir. 2009) (“If the science on population . . . trends is undeveloped and unclear, the Secretary cannot reasonably infer that the absence of evidence of population decline equates to evidence of persistence.”).

This language promises to bolster conservation efforts with regard to Endangered Species Act cases involving other species.  One example might be a potential challenge to the Obama Administration’s denial of ESA protection for Pygmy rabbits where:

The USFWS determined that there is insufficient data on pygmy rabbits’ populations across its range to determine that the species is sufficiently declining in number to warrant listing.

In its decision, the court maintains that:

the Service cannot take a full-speed ahead, damn-the-torpedoes approach to delisting—especially given the ESA’s “policy of institutionalized caution.” Ariz. Cattle Growers’Ass’n v. Salazar, 606 F.3d 1160, 1167 (9th Cir. 2010) (internal quotation marks omitted), cert. denied, 131 S. Ct. 1471 (2011).

Any binding language upholding the “policy of institutionalized caution” is welcome for wildlife advocates.

However, the circuit court agreed with appellants that the Service did an adequate job of detailing the adequacy of regulatory mechanisms protecting the bear in the absence of listed status, overturning Judge Molloy’s decision on that claim and remanding it back to the Montana District Court for reconsideration.

Read the Opinion

 Additional coverage:

Court upholds protections for Yellowstone grizzliesReuters

 

 
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About The Author

Brian Ertz

47 Responses to Grizzly Bears Maintain Endangered Species Act Protections

  1. avatar Mike says:

    Fantastic. But will Obama sell out grizz like he did wolves?

  2. avatar Mike says:

    lol, just read a bit of the PDF. You know you’ve gone batshit crazy when you’re on the same side as Safari Club International. Chris Servheen must be so proud.

    Where is Obama in all this crap? Oh that’s right, he hired a SOI that hates wildlife.

  3. avatar Kayla says:

    Great News! Gooooo Grizzlies!

  4. avatar Angus says:

    Well, that’s a heck of a lot better than pardoning a dang turkey! Happy thanksgiving, y’ol bruins!

  5. avatar Jeff says:

    I skimmed a lot of this opinion and it looks like a fairly narrow ruling that the USFWS failed to address the impact of losing pine nuts as a food source. They did not rule that “adequate regulatory mechanisms” were not in place. They cited the amount of wilderness in the areas outside of the PCA as a mechanism for continual survival as well as continued population monitoring. I wonder how long it will take the USFWS to conduct the analysis of the impact of a whitebark pine die off?

  6. avatar nabeki says:

    Just wonderful news right before Thanksgiving. I knew the ruling was imminent and hoped they would rule for the great bear.

    However I was a little disturbed by the split ruling:

    “However, the circuit court agreed with appellants that the Service did an adequate job of detailing the adequacy of regulatory mechanisms protecting the bear in the absence of listed status, overturning Judge Molloy’s decision on that claim and remanding it back to the Montana District Court for reconsideration.”

    But still a very great victory for Yellowstone’s grizzlies. Finally good news to counter the flood of bad wolf news.

  7. avatar Virginia says:

    There is a little article in the new National Wildlife Federation magazine discussing the devastation to habitats caused by the decrease in large predators – wolves, bears, elephants, sharks, lions, tigers, etc., etc. – all of those special creatures that have helped kept our various habitats healthy.

    • NWF must be schized – on the national front, they make appeals and write articles like Virginia mentioned; on the other hand they employed their attorney to fight the Greater Yellowstone Coalition and Earthjustice’s Doug Honnold, on behalf of their state affiliates, which are largely made up of consumptive hunters and anglers. Many of their affiliate members are itching to shoot a griz and have it mounted or made into a rug for the trophy room.

      I used to be an officer for one state affiliate and they always had that problem – hook and bullet issues at the state level with a NWF national office concerned about ESA, Clean Water Act, climate change, and toxic waste. Quite a disconnect.

      • avatar Alan says:

        I don’t believe (maybe wrong) that the Idaho, Montana or Wyoming (or other state) Wildlife Federations are affiliated with the National Wildlife Federation; however no matter, I see the National Wildlife Federation itself listed as a “defendant intervenor”. How disappointing. You really have to watch where you send your money.

        • avatar Ralph Maughan says:

          The National Wildlife Federation and its state affiliates have a very loose relationship to one another.

          Therefore, it often does not make sense to boycott the national because of what a state affiliate does, or vice versa.

        • avatar Virginia says:

          I plead ignorance – what do you mean by defendant intervenor? I guess the point I was trying to make (and didn’t I guess) was the loss of large predators having such a negative effect on our ecosystems? Thanks, Ralph, for your clarification of national and state wildlife federations. When I read Wyoming Wildlife (which is prepared by the state federation, I believe), it has a completely different slant than the magazine published by the national wildlife federation. Wyoming’s is all hunting, blah, blah, blah, whereas the national magazine advocates conservation, preservation, etc. Am I being duped by them?

          • avatar Ralph Maughan says:

            Virginia,

            I think Larry Zuckerman’s comments, which are few steps above mine, tell the story.

            The Wyoming Wildlife Federation seems to have made a very sharp turn against endangered species conservation. In the late 1990s, I was surprised shen they gave me their conservation educator of the year award. At the time my public profile in Wyoming (I live in Idaho) was clearly one of a person who supported wolf restoration and wrote a lot about the details of what was going on. By about 3 years later, their attitudes were so hostile to these things that I let my membership lapse.

          • avatar Alan says:

            Wyoming Wildlife is the official publication of the Wyoming Dept. of Fish and Game, not the Wyoming Wildlife Federation.
            I noticed a long time ago that the state Wildlife Federations were far more pro-hunting than the National Wildlife Federation; maybe because the National Wildlife Federation needs to appeal to a wider base. I don’t object to them appealing to hunters; I am not a hunter, I am personally anti-hunting, but I recognize that hunting is a legal activity and many hunters are heavily involved in conservation and I have a heck of a lot more in common with them than I do, say, ranchers or developers or frackers, for example. I do, however, object to them (NWF) signing on to this lawsuit on the wrong side.

  8. avatar SEAK Mossback says:

    It sounds like a tough situation with some of their food sources severely reduced, like pine nuts and cutthroat.

    The bears in this region probably got the feeding opportunity of a century this year with a record catch of 47 million wild pinks in northern Southeast barely scratching the runs headed into streams in this area. Streams that normally get 10,000s got 100,000s of pink salmon. In late October, I ran into and got some video of the biggest and by far the fattest brown bear I’ve ever seen in 30 years of 10-day fall coho escapement trips to the headwaters of a nearby river — and probably anywhere, including western Alaska. There’s some academic debate about how well marine derived nutrients (MDN) are stored in river systems. Well this guy was a walking MDN storage container — looked like he could easily sleep through two consecutive winters without refueling.

  9. avatar WM says:

    I don’t see this as a particularly strong or conclusive ruling. Indeed, it is quite narrow. It just means FWS needs to go back to the drawing board and more thoroughly explain its rationale for making a particular rule,and consider the food availability issue in real time, with information not available to it when the rule was made. Ever seen that one before?

    • avatar Dude, the bagman says:

      Agreed. And further, the court seems to have interpreted the ESA to require more than the Act’s actual language does. I’d be willing to bet cash money that this would be reversed if it went up to the Supreme Court. Not only because Scalia’s a douche, but because there’s a fair amount of precedent that answers the “best available scientific data” question the other way.

      For example:
      “the Service must utilize the “best scientific … data available,” not the best scientific data possible.” Building Industry Ass’n of Superior California v. Norton, 247 F.3d 1241, 1246 C.A.D.C.,2001.

      There is also a tendency for courts to evaluate listing and delisting decisions without recognizing their fundamental pragmatic differences (primarily available scientific data and successful management experience). I think its important to note that the quote from Ariz. Cattle Growers’Ass’n above about “institutionalized caution” concerned listing, where Servheen concerned delisting. A wiser fellow than myself once said “the path up is different from the path down.”

      There are many pragmatic differences between listing and delisting decisions. I would agree that the ESA has a “policy of institutional caution” for listing decisions, but I’m not sure the same policy applies to delisting decisions.

      Listing decisions tend to use “the precautionary principle” through the BASD standard, which allows species to be protected when there isn’t absolute scientific evidence that the species is endangered. However, the BASD cuts both ways. When signs point to a species being recovered, why do the courts suddenly expect absolute evidence that the species will never be threatened by any hypothetical factor that hasn’t come to fruition yet?

      In the original delisting rule, FWS couldn’t be sure how global warming will affect the whitebark pine in the future, or the effects that might have on the bear population in the future. These would be hypothetical projections based on how the weather affects a species that another species depends on for one of its food sources. What FWS did know is that the bear population had been growing since being listed in the 70’s, even though the whitebark was declining during the same period. The bear was near carrying capacity around Yellowstone. Through the experience and scientific data gathered through 40ish years of management, they concluded that the bear population was recovered.

      But GYC didn’t think that was good enough. They wanted assurances that the bear would continue to be protected with absolute certainty into the future. Well, one thing we know about the future is that it’s uncertain. Even with the bears still listed, the ESA does nothing to provide more whitebark seeds for the bears to eat. Listed or not, the bears will still have to face ongoing environmental changes. There is no effective way to legally protect a species from the future effects of intricate and unpredictable ecosystem processes. Even if laws were created to protect the natural world from chaotic ecosystem processes, nature only follows its own laws.

      Regardless, “institutionalized caution” is only a policy, and not the law itself. I do think the precautionary principle is a good policy for managing conservation-dependent species, but I don’t see where it’s written into the ESA. And if the ESA is implemented so that it’s impossible for a species to ever be delisted, that implementation may threaten its perceived legitimacy and ultimately lead to legislative meddling.

      I think it would have been better to delist the bears and see how things went. If the population fell, there are provisions for emergency listing. And FWS has already proven that it can manage the bears under the ESA’s protections.

      • avatar WM says:

        Dude,

        Well stated.

        ++When signs point to a species being recovered, why do the courts suddenly expect absolute evidence that the species will never be threatened by any hypothetical factor that hasn’t come to fruition yet?++

        Hence my earlier comment about judicial activism (which some find distasteful), and from the predictable 9th Circuit, no less.

        I tend to agree with you that this particular population of bears is, in fact, recovered and should have been delisted, pending relisting when and if there is a decline.

        The “what if {there are no whitebark pine seeds}?” hypothesis is not required by the ESA to my knowledge.

        • avatar SAP says:

          WM wrote:

          The “what if {there are no whitebark pine seeds}?” hypothesis is not required by the ESA to my knowledge.

          I’ll assume you mean that the loss of whitebark pine as a food source either is still or was at the time of delisting (early spring 2007) “hypothetical.” If that’s not what you mean, I apologize.

          The loss of whitebark pine as a major component of the GYE’s montane forests, and likely as a grizzly bear food source, now a reality. By 2007, there were plenty of warnings that it wasn’t hypothetical, either. The ghost that will haunt them is a statement BY AGENCY SCIENTISTS in a Wildlife Monograph:

          “Significant loss of whitebark pine due to blister rust (Reinhart et al. 2001) or mountain pine beetle (Dendroctonus ponderosae; Haroldson et al. 2003) would reduce survival rates for bears, especially conflict-prone individuals. Should whitebark pine decline rapidly, we speculate we would witness a scenario similar to what occurred what dumps were closed in YNP; more management problems, particularly outside the RZ, with a substantial increase in measurable bear mortality (Haroldson et al. 2005:55).”

          Mounting evidence that whitebark was declining rapidly, along with a fairly strong statement about the importance of whitebark to GYE grizzlies, PLUS Molloy’s contention that binding, enforceable regulatory mechanisms were not in place (still a live issue in remand), tipped the balance.

      • avatar JB says:

        Simply put, listing status determinations require agencies to review the “best” data available, and decide whether a species [subspecies, or DPS] meets the definition of a threatened or endangered species. Where you all seem to see judicial activism, I see courts struggling with agency decisions that seem out of synch with the science. There could be lots of reasons for this discontinuity (e.g., science that emphasizes a threat is probably more likely to get published, FWS’s intent to delist forces them to present an “overly-rosy” view, which attorneys find easy to discredit). However, I think the real issue may be the tendency to create recovery plans that are politically viable and biologically achievable, but actually fail when it comes to returning species to a state where most would agree that they no longer meet the definition of (at least) a threatened species. No question that grizzly bears in the GYE have done well in recent decades; however, given the threats this population faces in the future it’s hard to look at a population of 600 bears and conclude that they don’t meet the definition of a threatened species.

        • avatar Dude, the bagman says:

          I think a large part of the problem is the inherent value judgments and risk tolerance inherent it these decisions. They are supposed to be based solely on the best available scientific data, but this is largely just an appeal to scientific legitimacy in order to hide what are inherently political decisions.

          Science can’t tell us what timeframe or degree of probability the ESA is talking about when it says “unlikely to become endangered in the foreseeable future.” Science just provides data that must be interpreted by human beings. Human beings have different risk tolerance and values. As a result, differences of opinion can exist when analyzing scientific data through a legal framework with a person’s own point of view. Science can’t prove such a subjective and loosely worded concept.

          The BASD standard is also problematic for FWS because it forces the agency to hide any scientific uncertainty and value judgments it makes in interpreting data. It overstates its case in scientific terms, which makes its conclusions look weak, arbitrary, and susceptible to legal challenge. But the alternative is presenting its arguments in a way that doesn’t look scientific, which looks like it violates the BASD mandate. The agency is kind of left between a rock and a hard place.

          • avatar JB says:

            I agree on all counts. I would add that recovery plans contribute to the problem because they formalize risk tolerance judgments without acknowledgment (probably for the reasons you mention; i.e., these judgments are arbitrary, not scientific).

            I wish more people understood that you cannot base decisions on science. I am weary of all the “you didn’t follow the science” banter that gets tossed about.

          • avatar mikarooni says:

            I think it’s a bit “tangential” to drill down ever deeper into finer and finer “scientific data” without standing back and looking at the situation as a whole. The grizzly bear population in the GYE is maybe ~600 individuals, with a reliable breeding gene pool of perhaps half of that? If you were looking at a human population limited to that size, any rational person would recognize it as an inbreeding nightmare, with genetic drift and congenital diseases running amok. There would be no question of whether that community was sustainable over the long-term or already in trouble. But, with a GYE bear population of the same size, we dither and parse and wave our hands trying to find a way to recast the obvious. Let’s face it; the obvious truth is that, regardless of whether the GYE bears do well for a few seasons and grow their populations a bit, a population of any species that is genetically bottlenecked at ~600 individuals is at severe risk in terms of long-term sustainability and needs strong protection …and not by a state agency that gets its revenues from the hunters that are now a major risk element for the bears.

          • avatar WM says:

            ++If you were looking at a human population limited to that size, any rational person would recognize it as an inbreeding nightmare, with genetic drift and congenital diseases running amok. There would be no question of whether that community was sustainable over the long-term or already in trouble.++

            IMHO this is a red herring, mik. You can add genetic diversity thru translocation at very low cost, and there is a readily available supply to the north. Maybe that should even be an element of the delisting monitoring.

            If I recall correctly, the grizzly recovery plan has lots of intergovernmental cooperative aspects and has had for years. If the genetics is a concern for state management, it could very well be a part of a delisting requirement – monitoring the genetic health of the population, and infuse as needed.

          • avatar Immer Treue says:

            WM,

            “You can add genetic diversity thru translocation at very low cost, and there is a readily available supply to the north.”

            You’re not suggesting bringing in the occasional larger more aggressive Canadian bear are you? 🙂

          • avatar Savebears says:

            IM,

            Perhaps some of the nice Kodiak island bears would boost the genetics!

            LOL

          • avatar Dude, the bagman says:

            Mikarooni,

            I agree that the bears will require continued conservation efforts. I’m just not sure they meed the definition of “endangered” or “threatened” under the ESA. The issue is whether the bears can be successfully managed under a framework other than the ESA.

            Whether conservation-reliant species should be delisted is a separate policy argument. And I’m not sure if they should be.

            On the one hand, continued federal management would probably be more consistent, rather than fragmenting management authority among the states. And the ESA does provide more certain habitat protection than forest plans and MOUs.

            On the other hand, there’s been a good amount of management experience and data gathered during the listing period, and the states have a good incentive not to screw it up (the looming threat of relisting). Just being delisted doesn’t necessarily mean the bears will be mismanaged or hunted at all (though the possibility of further habitat fragmentation is worrisome). And I’m not sure delisting is somehow going to put the bears at greater risk from hunters than what exists now.

            What we know won’t happen is giving the bears their habitat back. Listed or not, we’re not going to have much more than a token population because bears and human habitation don’t mix well. Whether we can handle that reality and manage responsibly without the ESA is really a question of political will. But then again, ESA implementation is also a question of political will.

          • avatar JB says:

            “You can add genetic diversity thru translocation at very low cost, and there is a readily available supply to the north. Maybe that should even be an element of the delisting monitoring.”

            So is it your opinion that a species that may require translocation to increase genetic diversity does not meet the definition of a threatened species under the ESA?

          • avatar WM says:

            JB,

            Well, that seemed to work for the NRM wolf reintroduction with a total of 66 wolves (and some natural Canadian in-migration). Ed Bangs and mos of the scientists on whom he relied didn’t seem overly concerned. Appendix 9 (I think that is the right reference) of the 1994 EIS casualy mentioned translocation or more infusion, or words to that effect, if needed. Not sure how comparable bears are to wolves on the genetic front, but if lack of genetic diversity was a problem it would have been mentioned in the Grizzly recovery plan and the delisting documentation.

            If it is good enough for wolf delisting, why not grizzlies? Afterall, they can always be relisted in a heartbeat.

          • avatar JB says:

            WM:

            The basic question asked in a listing status determination is: does this species [subspecies or DPS] meet the definition of a threatened or endangered species. I would argue that the goals set by the recovery plans for both wolves and grizzlies do not move these populations to a point where they no longer meet the definition of a threatened species (for most people); admittedly, this is likely because individuals, including judges, are willing to tolerate different degrees of risk.

            Again, to be honest I cannot see how one could look at the isolated grizzly population in the GYE and concluded that it does not meet the definition of a threatened species. How can a population that needs (or is likely to need) “genetic rescue” via translocation not be a threatened with extinction? I just don’t see how this passes a simple “sniff” test?

          • avatar WM says:

            JB,

            ++Again, to be honest I cannot see how one could look at the isolated grizzly population in the GYE and concluded that it does not meet the definition of a threatened species.++

            I tend to agree with respect to the generic concept of “threatened species,” but outside of that it would not mean for me that they could not be managed outside the protections of federal law, the ESA, by the individual states within which these bears reside (and of course there is the federal reservation of YNP, which still provides federal protection there.

      • avatar SAP says:

        Dude –

        Not to nitpick, just want to provide a little more detail. You wrote

        “What FWS did know is that the bear population had been growing since being listed in the 70′s, even though the whitebark was declining during the same period.”

        Actually, the population likely kept declining from listing (1975) into the mid 1980s. In the mid80s, the agencies really stepped up their game as far as reducing bear-human conflicts. Those improvements coincided with (but weren’t just coincidental) the creation of the Interagency Grizzly Bear Committee.

        Whitebark pine, on the other hand, was doing pretty good until the beginning of the 21st Century. Blister rust was sort of muddling along but wasn’t a huge threat. Some places in the GYE there was substantial blister rust, but we were seeing big old whitebarks that were surviving blister rust just fine.

        It was a combination of improved management (road closures, conflict prevention in particular) and a healthy whitebark pine component producing a run of good cone crops (several good runs in the 80s and 90s) that led to the substantially larger grizzly population we have now.

        It is not the case that the population grew to its present level while whitebark simultaneously declined. Whitebark in all likelihood played a large role in growing the population to the levels we see today.

        Enter the pine beetle. On the western tier of the GYE, we saw mountain pine beetle really surge about 2002. It was off to the races from there. Healthy whitebark stands one year were red-needled the next. I recall thinking in 2005 that a few isolated stands near treeline in the Madison Range were going to be spared. By 2007, they were dead too. The Gravelly and Snowcrest Ranges – swaths of red/dead by 2006, with very very few surviving mature trees (genetic resistance? we hope so).

        The Final Delisting Rule (2007) mentions whitebark strongholds in the Absaroka Range. I have not gotten in there as much as I’d like, but I can tell you this: 2007, way up above 9000′ in the Greybull drainage, we were seeing beetle kills in the whitebark. South of there toward Dubois, same story. Robert Hoskins has made a far more extensive and observant study of these supposed refugia, and I think his observations would be consistent with mine.

        Yes, of course, that was summer 2007, and the Final Rule delising grizzlies came out 29 March 2007. So, those observations weren’t available to USFWS. Lots of other observations were, however, dating back to 2000 or earlier.

        Coupled with evidence that we were/are not in a cyclic warming trend, but rather a long-term anthropogenic change in climate, there was no reason to expect beetles to do anything other than what they’ve done: kill whitebark until they had almost none left to kill.

        You’re correct still to say that we don’t know what this will do to grizzlies. I hate to cop out on this question, but it may be the case that both sides are right regarding what’s driving current conflict levels: it’s a larger population, so conflicts and mortalities will be numerically higher, even if the rate stays the same. On the other hand, maybe this is what the whitebark free future looks like for grizzlies and grizzly managers: we maybe won’t have those good cone crop=low conflict years anymore, because we won’t have good cone crops.

        There seems to be a real problem with pro-delisting folks making a straw man out of concerns over whitebark. They’re always quick to point out that grizzlies are intelligent adaptive omnivores, that many grizzies in the GYE likely never ate any whitebark seeds, and that all of the grizzlies in the GYE periodically did without whitebark seeds in poor cone years.

        All true. No credible thinkers, however, are claiming that the loss of whitebark is going to eliminate the GYE grizzly population in the foreseeable future. Grizzlies aren’t pandas. Let’s keep in mind, however, that the vaunted Conservation Strategy aims to keep 500 grizzlies in the GYE. The worry number, then (presumably a relisting number??) is 499, not zero. If we’re at 600 now and keep having high conflicts and high mortalities, we could dip below 500 in the space of a few years.

        You also wrote
        “the ESA does nothing to provide more whitebark seeds for the bears to eat. Listed or not, the bears will still have to face ongoing environmental changes.”

        True. The ESA is, however, very good at limiting mortality relative to delisted status in most cases (there is the argument that a sport hunt would be compensatory, just taking bears that would have been lost to management removals anyway). The ESA can protect additional habitat. You’re right — short of setting up feeding stations that supply pine nuts from Costco, the ESA can’t give bears more pine seeds in the short term. But it can help them adapt to the whitebark-less future.

  10. avatar STG says:

    Thank you GYC and NRDC for your hard work and commitment!

  11. avatar Dude, the bagman says:

    SAP,

    “What FWS did know is that the bear population had been growing since being listed in the 70′s, even though the whitebark was declining during the same period.”

    Admittedly overly simplistic. There were definite bumps along the way, and the whitebark decline was also less than linear and may well become a bigger problem for bear management in the future. Still, that is the overall trend from what has actually been observed. As you stated, a lot of the population growth is attributable to good management, and a lot of it is attributable to the bears having enough to eat (including varying crops of whitebark pine nuts).

    And I don’t mean to minimize the effects the whitebark decline may have on bears. It’s just that we don’t really know, and the ESA doesn’t provide much guidance for dealing with different degrees of uncertainty. Yet some pretend that we do what those effects will be, and that the ESA does provide that kind of guidance.

    I think we (both pro and anti-conservation folks) are eventually going to have to actually address scientific uncertainty and indefinite legal language directly rather than pretending it doesn’t exist and proclaiming our righteousness to a hopefully sympathetic judge.

    What gets my goat is the dishonesty this spawns. Science may inform our decisions, but it doesn’t dictate our values. Both sides overstate their case, claim science is on their side, and twist the ESA slightly to support their cause. Outcomes are inconsistent though always phrased with the air of objectivity and legal determinism. But the ESA is full of uncertain and subjective language like “unlikely” and “foreseeable future.”

    We’re largely talking about predictions and risk-tolerance for hypothetical situations. If the forecast predicts a 20% chance of rain, do you wear a jacket or not? The answer depends on how comfortable you are with possibly getting wet vs. dealing with the hassle of taking possibly unnecessary precautions. Or how much credit you give that specific forecaster.

    Pretending it’s cut and dry doesn’t lend any credibility to either side. I’d prefer blunt statements about management priorities to be brought into the open and letting the proof be in the pudding. I’m not really sure all the sophistication and sneakiness has really changed the outcome on the ground. It may just make the rationalizations more convoluted.

    • avatar SAP says:

      “Science may inform our decisions, but it doesn’t dictate our values.”

      Dude!

      This truth is one of the most important things to try to get across. It certainly isn’t going to resolve everything, but if people at least started there, we would know what we were arguing about. Posturing and grand pronouncements about “Science” — especially “science vs politics” are just deluding folks into thinking that someone has the answer, if only people would stop being so corrupt.

  12. avatar Ethan Edwards says:

    It is my understanding that the Idaho, Montana, Wyoming wildlife federations are autonomous affiliate organizations to the National Wildlife Federation but aren’t bound by, or necessarily inclined to agree with, NWF positions. IWF, MWF and WWF are very independent and generally reflect regional socio-political viewpoints. Not a lot of climate change talk or debate on fracking.

  13. avatar Ethan Edwards says:

    The grizzly population in the GYE passes the sniff test because these populations have met and exceeded every target in the grizzly bear recovery plan and is continuing to grow in terms of both numbers and occupied habitat.

    • avatar Ralph Maughan says:

      Ethan Edwards,

      I am not sure what “the sniff test” is but the problem with delisting grizzlies is that one major food source has collapsed and others have declined greatly.

      Most importantly, whitebark pine are all but dead. They won’t be coming back in any reasonable time, if ever. Lake trout have displaced Yellowstone cutthroat, and whirling disease has the greatly depressed those trout that live in many streams the bears used to fish, such as Pelican Creek, Raven Creek, Trout Creek.

      USFWS did not examine the effects of the whitebark pine die-off despite hundreds of scientists and others who commented on it. They (USFWS) probably can delist the bear, but they can’t just blow all this concern off. That’s what the Court of Appeals said.

      It appears to me the grizzly population has peaked and will now decline slowly, or as some fear, rapidly.

      We would expect hungry bears to try to occupy a larger land area even as their population shrinks.

      • avatar Mark Gamblin (IDFG) says:

        Ralph –
        The Yellowstone grizzly bear population continues to increase annually by roughly 5%. I am not directly involvd in this management issue, but my understanding is that population growth is occuring across the currently occupied range, including significant portions that do not have now and have not had white bark pine as a component of grizzly bear foraging resources. If a significant portion of the Yellowstone grizzly bear population continues to increase in number without the benefit of white bark pine as a forage resource, is it reasonable to conclude that the population as a whole is not threatened (by ESA criteria) by the decline in white bark pines?

        • avatar Ralph Maughan says:

          Mark Gamblin,

          You are not correct. We published this article Oct. 14, “Greater Yellowstone grizzly population stops growing, drops slightly.” Here is an excerpt: “Record mortality in 2010 took its toll- Population goes from 602 to 593. Fifty-five grizzly died or were killed by people in 2010, a record. That pace is off slightly in 2011 (35 so far). A large number of grizzly food sources have disappeared in recent years, most notably whitebark pine seeds and cutthroat trout. As a result the population has spread out, and more people run into griz and further afield from Yellowstone Park itself where maybe half the population lives.”

          High mortality brought the population down. This is just what you would expect as the bears search for new food sources. They will find new food sources, no doubt, but many of them will be unacceptable to humans because they will be closer to people, they will be crops and livestock. This will accelerate a population decline.

      • avatar JB says:

        Ralph:

        The “sniff test” is in reference to my post above. I was referring to the way one might determine if milk had soured-if it stinks, it probably has gone bad.

        Ethan seems to miss entirely the point of my original post, which was that the recovery objectives that were set for grizzlies in the GYE were obtainable, they didn’t move the bear population to a point where they are capable of passing the “sniff test” for many (most?) people (apparently judges included). In my estimation, this is because such decisions rely on individual’s “risk tolerances” (again see the discussion above). If you’re willing to tolerate a high degree of risk, 600 bears with declining food sources and continued anthropogenic threats is probably adequate for recovery; if your risk tolerance is lower, it probably isn’t. I think most people fall in the latter camp.

        – – –
        Mark et al.– An increasing population is evidence of recovery, but it is not by itself enough to justify recovery; likewise, just because a population is decreasing does not necessarily mean it is threatened with extinction.

        • avatar Ralph Maughan says:

          Well Mark is wrong anyway.

          This is reminiscent of the wolf population controversy. All three states argued that the wolf population would grow indefinitely, but it leveled off and now is in decline except Wyoming where it grows slowly.

  14. avatar Mark Gamblin (IDFG) says:

    Ralph,
    I think you may mis-understand my message. I didn’t say that the Yellowstone grizzly bear population will continue to grow and expand. Indeed social carrying capacity/tolerance is one reason why the Yellowstone grizzly bear population may be at it’s practical limit for range of distribution. My previous point was specific to the premise that the decline of white bark pine communities constitutes a credible threat to the continued viability/stability – relative to ESA listing criteria. The Yellowstone grizzly bear population continues to produce more bears than it’s current range of distribution will support – hence the ongoing, increasing grizzly-human conflicts in the here-to-fore unoccupied habitat.

  15. avatar Alan says:

    In my opinion, animals like the grizzly bear and the grey wolf should never be removed from the threatened species list, because so many of the factors that put them there in the first place still exist and always will exist. Loss of habitat, intolerance, global warming. These things aren’t going away regardless of the number of individual animals that are in the ecosystem today. It’s not about numbers, it’s about habitat. When an animal is listed, habitat is protected. When habitat is protected the animal survives. When a species is removed from the list and “treated like any other animal” all those factors that lead to a listing in the first place kick back into high gear.
    Still, a species cannot remain fully protected forever. There is limited habitat (and limited tolerance). Some populations would be self limiting, others perhaps not.
    Also Americans tend to look at animals that go on the list and do not come off as proof that the ESA is a failure. Of course nothing could be further from the truth: the purpose of the ESA is to prevent an animal’s extinction. Keeping an animal on the list does that.
    So what is the answer? Perhaps some sort of “threatened species list light”, a halfway house, as it were, for high profile species who still face all of the threats, and perhaps more, that put them on the list in the first place. Habitat protections would remain in place. Day to day management, including any possible hunting season, would fall to the states (perhaps with some financial assistance), but with major management decisions such as hunting quotas etc. being reviewed by the feds to insure continued viability. This status would continue indefinitely.
    Just some thoughts.

    • avatar WM says:

      Alan, those are good thoughts IMHO. The apparent problem is the ESA as currently interpreted doesn’t allow for a “threatened light” concept under the umbrella of the law. Common sense application does not seem to be one of the stronger aspects of the ESA. And few here (probably for good reason) want this can of worms opened, should the ESA be revisited in a material and comprehensive way.

      • avatar Alan says:

        “And few here (probably for good reason) want this can of worms opened, should the ESA be revisited in a material and comprehensive way.” Absolutely for good reasons in the current political climate.

      • avatar mikarooni says:

        Well, there you go again. The last time I posted, you displayed your confusion about DPS protections by offering that, if the genetic diversity of the GYE bears was in danger, then just “translocate” some different bears into the system. This time, you claim there’s a problem with the ESA because it doesn’t allow for a “threatened light” status and, then, in the next sentence, you want more “common sense” in the law. Finally, you finish with a veiled threat about revisiting the ESA. I honestly can’t tell which leaves me more disappointed, your intellect or your character.

  16. avatar timz says:

    “I think you may mis-understand my message.” “The Yellowstone grizzly bear population continues to increase annually by roughly 5%.”

    How do you misunderstand this. You made a blatant statement that was a lie, much like most of the crap you post here. You are a joke and a disgrace. Quit embarassing yourself and go the *&(&( away.

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‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

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