Judge temporarily blocks grizzly bear hunt

Plaintiffs sought emergency injunction before Saturday’s opener
Thursday, September 6, 2018

Unsplash photo by Hans Veth

A grizzly bear walks among the trees. Nearly 30 plaintiffs, including the Crow Tribe, have filed a lawsuit against the U.S. government to stop grizzly bear hunts, which they believe violates the Endangered Species Act.

Montana Chief U.S. District Judge Dana Christensen

A federal judge last Thursday temporarily blocked a planned grizzly bear hunt in parts of Idaho and Wyoming near the borders of Yellowstone National Park that was slated to begin Saturday.

Nearly 30 plaintiffs, including the Crow and other Indian tribes, along with environmental groups and individuals, sued the federal government last year seeking to block the hunt.

The plaintiffs argue the hunts violate the Endangered Species Act and would threaten grizzly bear populations that have clawed their way back from the brink of extinction in the Lower 48 states since they were last hunted in Wyoming more than 40 years ago. Montana ended its grizzly bear hunt in 1991.

Attorneys for the U.S. Fish and Wildlife Service and the states of Idaho and Wyoming argued grizzly bear numbers have increased to stable populations in and around Yellowstone National Park and that hunting is now appropriate to manage their numbers outside the park’s borders.

U.S. District Judge Dana Christensen heard arguments from both sides in his Missoula courtroom last Thursday, but declined to rule on the merits of the lawsuit.

However, shortly after the hearing, Christensen granted the plaintiffs’ request for a temporary restraining order and preliminary injunction barring the hunt for 14 days while he considers the “serious questions going to the merits” of the case.

“… [T]he threat of death to individual grizzly bears posed by the scheduled hunt is sufficient,” to warrant the injunction, Christensen wrote, noting that, “harm to…members [of endangered species] is irreparable because once a member of an endangered species has been injured, the task of preserving that species becomes all the more difficult.”

Matthew Bishop, of the Western Environmental Law Center, is one of the attorneys representing the plaintiffs in the lawsuit. Bishop, reached late last Thursday in Missoula, said Christensen’s swift ruling on the request for an injunction was a pleasant surprise.

“We’re thrilled,” Bishop said. “At the end of the day, we really want to see the hunt shut down. This injunction gives the court more time to rule on the merits of the case. It buys him some time to sort through the law and make a legal decision.”

The hunt, which was set to take place in Idaho and Wyoming – but not Montana – is the result of the U.S. Fish and Wildlife Service removing the Yellowstone grizzly bear from the endangered species list in 2017.

Plaintiffs argue the grizzly bear is still relatively close to extinction compared to its historical numbers and that de-listing it now could undo the progress the grizzly has made since 1974, the year the last legal hunt took place in Wyoming.

Defendants say the Yellowstone grizzly is a conservation success story and is safe to take off the endangered species list, and hunt, without fear of adversely impacting the species’ numbers.

Yellowstone grizzlies, the southernmost population of the species which once ranged deep into Mexico, were briefly de-listed in 2007 before a Montana federal judge relisted them in 2009 due to the collapse of the whitebark pine tree population. Whitebark pine, which has been severely impacted by the warming climate, prolonged drought and pine beetle infestations, is a primary food source for the bears. No hunting was permitted at that time.

U.S. Justice Department attorney Coby Howell said during last Thursday’s oral arguments that years of research have shown the collapse of the grizzlies’ whitebark pine food supply had no effect on the bear’s population and that the species has since adapted.

“The bears are doing better than they were in 2007,” he said. “If you move the goalposts, people start questioning [the Endangered Species Act].”

Grizzly bears still range widely across Alaska and northern Canada, but their numbers in the Lower 48 states are limited to only a few parts of the mountainous West: Yellowstone, the Northern Continental Divide, the Selkirk Mountains and Cabinet-Yaak area, with smaller numbers in the North Cascades. The Bitterroot Mountains had grizzly bears until 1932, but wildlife biologists expect the population to eventually recover there if the bears continue to expand their range.

The plaintiffs claim U.S. Fish and Wildlife officials can’t remove individual populations of grizzlies from the endangered species list, as has been done with the Yellowstone bears. While bears are protected from hunters inside Yellowstone National Park, opponents of de-listing say that core population of bears will be dangerously whittled down as they leave the park and are killed by hunters.

The government argues that because of conservation agreements between the federal and state government, that won’t happen.

“It’s an exciting time, these isolated subpopulations are starting to disperse,” Bishop told Christensen during oral arguments.

Bishop said the bears need protection as they disperse. He compared the arbitrary national park boundary to similar wrinkles in conservation law, such the fact that gray wolves can be shot on one side of a state border where hunting is legal, but not 20 feet across it in another state where the animals are protected. Nature doesn’t observe invisible man-made borders, Bishop argued.

Last Thursday’s hearing followed a pattern typical of many environmental lawsuits, with the opposing parties disagreeing over the most appropriate population size and mortality studies, and accusing one another of cherry-picking data.

Humane Society attorney Nicholas Arrivo, representing plaintiffs in the case, said the government “lowered the bar” when judging whether to de-list grizzlies to “push the final rule over the finish line.” He said the government’s decision was not based on a scientific debate, but an eleventh-hour concession made for political expediency.

“The Endangered Species Act does not allow for this type of horse trading,” Arrivo said.

Earthjustice attorney Tim Preso said prior to the injunction that without it, the country was on the eve of killing up to 23 bears this weekend.

“One of the American West’s most iconic animals in one of its most iconic landscapes,” Preso said of impending sanctioned killing of Yellowstone-area grizzly bears.

Preso told Christensen that since the judge declined to rule on the lawsuit, the plaintiffs planned to immediately file their request for a preliminary injunction to stop this weekend’s hunt, with a timetable to appeal to the 9th U.S. Circuit Court of Appeals on an emergency basis to get it done in time. Christensen granted that request hours later.

During the hearing, Christensen asked Erik Petersen, an attorney representing the state of Wyoming, if it would be possible to delay Wyoming’s planned hunt. Petersen told the judge that was possible because the state outfitted every licensed grizzly hunter with a satellite phone to report bagged bears. Petersen said those phones could be used to tell the hunters a judge says “don’t shoot.” Petersen said it might be hard to get ahold of Wyoming’s governor, as he is in a remote area and unreachable.

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