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Listed Again: Greater Yellowstone Grizzlies Federally Protected And Won't Be Trophy Hunted

What the Ninth Circuit Court of Appeals wrote in its high-profile ruling and what it means for the most iconic population of bears in the world

Greater Yellowstone's grizzly population is the best known in the world and one of the symbols of its beloved status is 24-year-old Jackson Hole grizzly mother 399 who this spring emerged from her den with four cubs  This image, titled "Among the Sage—399 and Quadruplets" is a new print release by Thomas Mangelsen and we are grateful for his permission to use it. You can view more of Mangelsen's work at Mangelsen.com
Greater Yellowstone's grizzly population is the best known in the world and one of the symbols of its beloved status is 24-year-old Jackson Hole grizzly mother 399 who this spring emerged from her den with four cubs This image, titled "Among the Sage—399 and Quadruplets" is a new print release by Thomas Mangelsen and we are grateful for his permission to use it. You can view more of Mangelsen's work at Mangelsen.com

by Todd Wilkinson

Greater Yellowstone’s iconic population of grizzly bears will remain federally protected, the Ninth Circuit Court of Appeals ruled July 8 from Portland, Oregon.

The decision upholds a lower court judgement handed down in 2018 that, in turn, followed a dramatic 11th-hour halt of the first scheduled sport hunt of grizzlies in the ecosystem in four and a half decades.

Few wildlife management issues in modern America have aroused more passion. This one is about an animal demonized as bloodthirsty in frontier-era literature and barber shop hook and bullet magazines while, at the same time, now held up as a creature of mass adoration. For the latter, look no further than 24-year-old Jackson Hole grizzly mother 399 who emerged from the den this spring with four new cubs and made news around the world.

Predictably, the Ninth Circuit ruling, written by Judge Mary M. Schroeder, elicited cheers from conservationists, tribes and individual citizens. Together, in an amalgamation of cases, they brought suit claiming the federal government’s decision to remove Yellowstone-area grizzlies from safeguarding under the Endangered Species Act was premature.

As no surprise, the announcement elicited immediate condemnation from hunting and agriculture organizations who, along with the three states of Wyoming, Montana and Idaho, insist Greater Yellowstone’s bear population long ago surpassed metrics proving it is biologically healthy.

“The grizzly population has more than recovered,” says Tex Janecek, outgoing president of the Montana state chapter of Safari Club International which along with the National Rifle Association and Rocky Mountain Elk Foundation intervened on the government’s behalf to argue for handing over bear management into state hands. 

“We should be having a hunting season and the states should be regulating it,” he added. “Bears are ranging far beyond the Greater Yellowstone region and they are getting in trouble with livestock and putting people at risk. Hunting can be an effective tool.”

Essentially the US Fish and Wildlife Service, which holds jurisdiction over grizzlies as a federally protected species, must now go back and address three areas that both the US district and appellate courts said undermined the government’s justification for removing bears from ESA protection in 2017.

But really, what does the Ninth Circuit Court decision mean? 

The answer is that it has implications not only for grizzlies in Greater Yellowstone but it also affects the push to delist bears in the only other stronghold of bruins in the Lower 48—the Northern Continental Divide Ecosystem that includes Glacier National Park and the nearby sprawling Bob Marshall Wilderness.

Between them, the Northern Continental Divide and Greater Yellowstone ecosystems are home to the vast majority of about1800 grizzlies still found south of Canada. They are descended from around 50,000 that roamed a dozen Western states and were reduced through targeted eradication, overhunting, livestock protection and poaching to just two percent of their former range.

The Ninth Circuit Court decision also sets the stage for assessing the status of grizzlies in three other ecosystems that currently hold tiny isolated bear populations. And it calls attention to the Bitterroot Mountains of western Montana/northeastern Idaho representing a crucial wildland halfway point between Greater Yellowstone and other areas to the north. 

Further, the Fish and Wildlife Service’s thinking about delisting grizzlies has parallels to how the agency has approached removing gray wolves in the Lower 48 from federal management. Lastly, the case invites larger questions about the intent of the Endangered Species Act and what biological recovery of an imperiled animal means in a larger sense.
A billboard that greeted locals and tourists outside Cody, Wyoming, indicative of two different worldviews clashing over differing ideas about how to best manage bears.
A billboard that greeted locals and tourists outside Cody, Wyoming, indicative of two different worldviews clashing over differing ideas about how to best manage bears.
Judge Schroeder, lead author of the Ninth Circuit Court’s opinion, alluded to Greater Yellowstone’s grizzlies as a “remnant” population—an enclave of bears that was not extirpated (completely eliminated due to killing by humans as wolves in Greater Yellowstone were by the 1930s).  

This, in many, ways, gets at the crux of the issue surrounding biological recovery.  It represented the heart of an argument made by Bozeman-based attorney Tim Preso when his non-profit environmental law firm EarthJustice and plaintiffs first brought their suit before US District Court Judge Dana L. Christensen two years ago. 

As an ”island” population of grizzlies geographically separated from other remnant clusters of bears, Greater Yellowstone’s bruins have more vulnerability to extinction over time. 

Some scientists have raised concerns about genetics, i.e. that with around 140 bears or fewer that survived when the Greater Yellowstone population dropped to its lowest point in the 1970s and early 1980s, there is a lack of genetic diversity, which could have negative impacts due to inbreeding. 

The Fish and Wildlife Service and states have maintained that the issue can be easily remedied by, every so often, importing bears from outside Greater Yellowstone into the ecosystem to enhance the gene pool. 

While both courts referenced this concern in their ruling to keep Yellowstone area grizzlies on the federal protected list, two other issues highlighted in the Ninth Circuit Court decision loom more prominently. Observers say they are far more problematic for the Fish and Wildlife Service to resolve.

° ° ° °

The comeback of grizzlies in Greater Yellowstone is considered one of the most momentous wildlife conservation successes in history. Possessing mystique, their presence synonymous with America’s first national park and foundational in 2020 to a robust wildlife-watching economy, grizzlies were in a spiral that even veteran bear managers believed would be difficult to remedy.

Today, grizzlies are being seen in places where they haven’t been in a century. That includes remote valleys in the Northern Rockies, the outskirts of towns like Bozeman, Jackson and Cody, Wyoming and the treeless prairies further east in private cropland and big open ranges where livestock graze. Some, but not very many, cattle and sheep out on the prairie have been preyed upon but there have been no human fatalities.

Still, apart from the awe and primal fear grizzlies elicit, there is a philosophical musing that goes beyond the data crunching of scientists.

Is a species “recovered” if its numbers are stabilized in a given region yet that same region remains isolated from other island populations? Conservation biology makes clear that having a larger unified metapopulation offers better chances of resilience for creatures like grizzlies that are slower to reproduce than animals like wolves and elk. Isolated populations are more vulnerable to the effects of possible disease outbreaks, habitat fragmentation, human-wildlife conflicts that come with more people moving into wild country and climate change that already has impacted a key grizzly food.

Longtime grizzly bear activist Louisa Willcox and her ecologist husband David Mattson, who spent years working for the Interagency Grizzly Bear Study Team, say scientific analysis suggests that in order for Greater Yellowstone's isolated grizzlies to have the best chance of survival over decades, the population size should be about 2,000 bears, at least two times more than inhabit the region.

Or, an alternative is to have a larger interwoven population of bears spread more widely across the landscape.
Senior EarthJustice attorney Tim Preso, left, arrives at the US District courthouse in Missoula on Aug. 30, 2018 along with colleague Josh Purtle. Together, they and others sought an injunction from Judge Dana L. Christensen, preventing Wyoming from moving forward with its first trophy hunt of grizzlies in 44 years. The state had set a quota of 23 bears. Christensen not only issued the injunction but a few weeks later issued a ruling that put Greater Yellowstone's grizzlies back under Endangered Species Act protections and challenged the US Fish and Wildlife Service to address key issues pertaining to grizzly recovery. Christensen's position was upheld on July 8, 2020 by the Ninth Circuit Court of Appeals. Photo courtesy Chris Jordan Bloch/EarthJustice
Senior EarthJustice attorney Tim Preso, left, arrives at the US District courthouse in Missoula on Aug. 30, 2018 along with colleague Josh Purtle. Together, they and others sought an injunction from Judge Dana L. Christensen, preventing Wyoming from moving forward with its first trophy hunt of grizzlies in 44 years. The state had set a quota of 23 bears. Christensen not only issued the injunction but a few weeks later issued a ruling that put Greater Yellowstone's grizzlies back under Endangered Species Act protections and challenged the US Fish and Wildlife Service to address key issues pertaining to grizzly recovery. Christensen's position was upheld on July 8, 2020 by the Ninth Circuit Court of Appeals. Photo courtesy Chris Jordan Bloch/EarthJustice
That’s why Preso and other lawyers have argued the goal ought to be not just having more bears in Greater Yellowstone but achieving an interconnected population linked to the Northern Continental Divide and complemented by grizzlies re-inhabiting the Bitterroot. Such an argument has found resonance with the courts.

The expanding bear populations from the south and north are now roughly only 60 miles apart from converging and those involve small numbers of bruins, Frank van Manen, head of the Yellowstone Grizzly Bear Study Team, operated by the US Geological Survey, has said. He believes contact will happen.

But until there is an ongoing confluence achieved, environmentalists argue true recovery cannot be claimed.

In 2007, the Fish and Wildlife Service made a maneuver to categorize grizzlies in Greater Yellowstone as a “distinct population segment,” i.e. treating them as a standalone grouping of bears.  As the courts noted, distinct population segments are sometimes declared by the Fish and Wildlife Service as a tool to rescue isolated subpopulations of imperiled species that are in trouble.

Yet as Preso argued, the Service had the opposite intention in mind for Greater Yellowstone bears. By gauging the success of recovery only on numeric metrics for Greater Yellowstone, without viewing recovery within a larger context of connecting its bears to other populations, government agencies were declaring victory without meeting the intended goal of the ESA.

But it goes further, Preso told Mountain Journal after learning of the Ninth Circuit Court decision on July 8. The Service’s strategy, he said, appears to be one of lifting protections in Greater Yellowstone as a prelude to doing the same with the Northern Continental Divide population while requiring no binding commitment from the states to insure those two populations meet.  Preso says there also are no legally-binding criteria to ensure grizzlies reaching the Bitterroot remain protected.

“With regard to the Cabinet-Yaak and Selkirk subpopulations, what I fear is that if the larger Greater Yellowstone and Northern Continental Divide populations are delisted, the Fish and Wildlife Service could deem those other areas no longer significant, no longer considered vital to conservation of the species and not give them the attention they need,” Preso says.

Recently, the office of Interior Secretary David Bernhardt announced the federal government was mothballing plans, once even supported by his predecessor Ryan Zinke, to reintroduce 10 grizzlies to North Cascades National Park in Washington State.
A billboard that appeared along the Front Range of the Colorado Rockies
A billboard that appeared along the Front Range of the Colorado Rockies
Still another and perhaps the most controversial issue highlighted by the courts involves the accounting methods and mathematical models the Fish and Wildlife Service, US Geological Survey and states use to get an accurate reflection of bear numbers in Greater Yellowstone.

Parties on all sides of the issue acknowledge that it isn’t easy to do a census of elusive grizzlies. Scientists devised one longstanding formula based on sightings of bears and numbers of female bears with cubs to arrive at estimates. 

This method is known for delivering a conservative approximation and it suggests that today there are around 720 grizzlies in the core of the Greater Yellowstone and scientists like Mattson have asserted the population in the core may be declining. However, a newer population modeling method, cited by federal officials and the states, suggests there may be upwards of 1,000 bears or more.

Such estimates are important because they inform the number of bears that can die each year through “allowable mortality” without having deleterious impacts on the population. Moreover, population size figures prominently into how many bears states allow to be sport hunted.  

Conservationists are concerned about the Fish and Wildlife Service and the states engaging in statistical legerdemain by using the conservative grizzly bear estimate to make the case for delisting but then, after the fact, employing the more liberal accounting method to allow more bears to be shot in sport hunts.

Both the US district and appellate courts referenced government officials’ “recalibration” technique and how the former was used in an agreement called the “Conservation Strategy” that the states promised to abide by. However, states have been pushing to have the other method for estimating population size put into practice though it was not a mainstay of the Conservation Strategy that guides grizzly management forward.

What it means—and the courts picked up on this— is that, depending upon which model is more readily adopted, a lot more bears could be made available for sport hunting—on top of the number, usually dozens, that die each year from human-related causes that include: deaths caused by elk hunters who claim self-defense, removals to reduce conflicts with livestock or people living in developed areas, car collisions, and others.

To put this in perspective, Wyoming in 2018 used the conservative bear counting method to set a quota of 23 grizzlies available to trophy hunters. However, if the more liberal accounting method were applied—and very likely it would—Wyoming, Montana and Idaho could be able to set hunting seasons that could result in many dozens of grizzlies being trophy hunted in Greater Yellowstone each year, Preso said.

“The issue is particularly important here, because the current estimator is known to be conservative and a change could result in an illusory increase in population,” Circuit Judge Schroeder wrote.

Preso added there could be a situation where there is no longer an incentive to reduce conflicts between livestock and bears through better husbandry and rather just enlist hunters to keep public pastures clear of grizzlies.

“At the southern end of Greater Yellowstone, Wyoming Game and Fish could use a higher population estimate to justify going into the Upper Green River Valley along the Wind Rivers and giving hunters an opportunity to kill more bears on public land because cattle ranchers don’t like having them around,” Preso says. 
Another version of the billboard that went up in Cody.
Another version of the billboard that went up in Cody.
A few bad years of spiking bear deaths—especially that of breeding-age females, from unnatural causes, coupled with additive losses from hunting, could negatively impact the bear population. Independent scientists argue that is particularly true with a population already dealing with the loss of key foods like the nutritious seeds in rapidly disappearing whitebark pine trees and the collapse of the Yellowstone cutthroat trout population in Yellowstone Lake from the illegal transplanting of lake trout.

Revealing is that the Fish and Wildlife Service knew the different bear accounting methods were problematic. In the Circuit Court’s ruling, Schroeder cited email exchanges, obtained by conservationists, that occurred between former Fish and Wildlife Service Director Dan Ashe and former Grizzly Bear Recovery Coordinator Chris Servheen, acknowledging that “failing to include a recalibration commitment would be a ‘showstopper’ and would result in a 'biologically and legally indefensible’ delisting of the Yellowstone grizzly.”

The court also echoed the District Court's conclusion that some of the Fish and Wildlife Service's decisions justifying delisting were arbitrary and capricious and not based on the best available science. Regarding the Fish and Wildlife Service's reluctance to to make recalibration a part of the final Conservation Strategy, it referenced the lower court ruling that it was the result of political pressure applied by the states.
Emails cited by the Ninth Circuit and obtained in the legal discovery process revealed that former Grizzly Bear Recovery Coordinator Chris Servheen and former Fish and Wildlife Service Director Dan Ashe acknowledged that failing to include a recalibration commitment in the way Greater Yellowstone's bears are counted could be a "showstopper" and result in a "biologically and legally indefensible" delisting of the Yellowstone grizzly."
As a footnote, this very issue was mentioned by former Yellowstone Supt. Dan Wenk who told Mountain Journal in 2018 he was concerned the Fish and Wildlife Service might allow the states to “rejigger” the numbers in a way the states could exploit to kill more grizzlies in sport hunts including “transboundary bears” whose home ranges exist inside Yellowstone and Grand Teton parks and extend outside of them.

Wenk's protestations to colleagues on the Interagency Grizzly Bear Committee and at the Interior Department were dismissed.

After the Greater Yellowstone grizzly population was temporarily delisted in 2017, state wildlife officials in Montana opted against staging a trophy hunt of grizzlies at the same time Wyoming moved toward setting a quota of 23 bears that would be hunted. Idaho (which encompasses the smallest portion of Greater Yellowstone among the three states) said it would allow a male grizzly to be taken.

° ° ° °

Montana’s stated desire to help foster connectivity northward from Greater Yellowstone stands in sharp contrast to Wyoming’s approach to grizzly management in the southern third of the Greater Yellowstone region. 

Wyoming regards grizzlies that wander or live outside the primary recovery area as being biologically expendable. They are not counted in the calculus of bear recovery that is applied to gauging the health of the population in the ecosystem core. 

Somewhat similarly with wolves, Wyoming is required to maintain a minimum population of 100 wolves outside the boundary of Yellowstone (roughly10 packs) to prevent the species potential relisting.  It has created a "trophy game management" zone in the northwest corner of Wyoming, comprising about 15 percent of the state but not including the national parks where wolf hunting is not allowed. Wolves are aggressively controlled even when they are preying on elk herds that federal and state wildlife officials say are above population objectives set to prevent overgrazing impacts in reserves like the National Elk Refuge.

Beyond northwest Wyoming, in 85 percent of the rest of the state, wolves, classified there as worthless predators, can be killed by almost any means, on any day and at any hour. That treatment of wolves represents the only example in US wildlife conservation history—and annals of the Endangered Species Act— where a species given a second chance in a native landscape it was once eliminated from by humans has been immediately re-targeted for annihilation. 

Wyoming, from the governor and legislature on down to Game and Fish and Department of Livestock has demonstrated in the rhetoric of public officials that it still resents the recovery of wolves; and that it has no intention of allowing more lobos to inhabit the state than the number the federal government required at the time they were removed from protection under the ESA.

Game and Fish Department officials have admitted that bears command a different and more positive profile with the public than wolves do but the state offered a hint through its inaugural grizzly hunting quota that it would allow hunters to take transboundary bears off the northeast corner of Yellowstone and that it would exhibit lesser tolerance for grizzlies south of Jackson Hole where it says social tolerance for bear presence—even on public lands—is lacking. One of the reasons: livestock permittees and the political power they command with the governor-appointed Wyoming Game and Fish Commission which approves hunting seasons and has been openly outspoken against predators..

In practical terms, were grizzlies allowed to naturally disperse southward, biologists have no doubt that within years or decades, bears could again inhabit the High Uinta Mountains of northern Utah and northern portions of the western slope of the Rockies in Colorado. 

Indications are that it’s happening, slowly, with wolves, but there are questions about whether enough animals are entering Colorado to ever establish a viable population. The state has resisted working with the Fish and Wildlife Service to carry out a reintroduction, paralleling the transplant efforts that happened in Yellowstone and central Idaho 25 years ago. That's why a successful effort has been made to put wolf reintroduction on the ballot and let Colorado citizens decide.

In the six different lawsuits that converged in Christensen's courtroom, EarthJustice represented the Northern Cheyenne tribe, Sierra Club, Center for Biological Diversity and National Parks and Conservation Association. Other groups and individuals that also challenged delisting and sport hunting of grizzlies have been the Center for Biological Diversity, WildEarth Guardians, Humane Society of the US, Western Watersheds Project, Wyoming Wildlife Advocates, Alliance for the Wild Rockies, Native Ecosystems Council, and a dozen different tribal entities, indigenous warrior societies and well-known spiritual elders. 

“We are thrilled with the court's decision to uphold still-needed Endangered Species protections for Yellowstone's beloved grizzly bears,” said Bonnie Rice, senior representative with Sierra Club's Our Wild America Campaign. “Given the rapid pace of the extinction and climate crises, now is not the time to remove critical safeguards that will ensure Yellowstone's irreplaceable grizzlies stay on the road to recovery.”
The message that went up on a billboard in New York City sponsored by Patagonia and five Jackson Hole women friends who founded the organization "Shoot'em with a camera, not a gun."
The message that went up on a billboard in New York City sponsored by Patagonia and five Jackson Hole women friends who founded the organization "Shoot'em with a camera, not a gun."
Nature photographer Thomas Mangelsen, who lives in Moose, Wyo., and has chronicled Grizzly 399 for more than a decade, said his close friend, Dr. Jane Goodall, cheered the news from Bournemouth, England where she is hunkered down weathering Covid-19. In 2016, Goodall was among five dozen scientists and wildlife researchers who wrote to former Interior Secretary Sally Jewell and Fish and Wildlife Service Director Ashe, encouragingly them to continue federal protection but they instead supported delisting.

On the other side, supporting delisting and bringing back hunting, were the Mountain States Legal Foundation, Safari Club International, the National Rifle Association, Rocky Mountain Elk Foundation, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, the Pacific Legal Foundation, and the free-market thinktank Property and Environment  Research Center (PERC). 

The Pacific Legal Foundation and Bozeman-based PERC had characterized District Judge Christensen's decision in reversing delisting and stopping the hunt as "errant."  “The Yellowstone grizzly has achieved an impressive recovery, thanks to the combined efforts of federal biologists, state wildlife agencies, tribes, conservationists, and landowners,” Pacific Legal Foundation attorney Jonathan Wood said earlier “Blocking the grizzly’s delisting not only fails to honor their efforts but also threatens to undermine incentives for people to recover other species.”

In 2018, on the eve of the hunt, officials with Wyoming Game and Fish told me that interest was high in bringing back grizzly hunting as another opportunity and that thousands had entered a special lottery seeking tags. 

Robert Aland, an attorney from Chicago who spends months every year in Greater Yellowstone, was one of the individuals who filed suit and offered his legal services pro bono. This is the second time in 13 years that delisting has been overturned, he said, insisting that Wyoming, with its tanking natural resource economy, fails to grasp that millions of people who support tourism in the state find grizzly hunting distasteful and anachronistic.

“The bears won again this month,” Aland said. “The bottom line, consistent with my feeling about wildlife since childhood, is that I want these bears to be protected and preserved forever. I want the number of bears in the Lower 48 to increase steadily and naturally.  I do not want the guns of trophy hunters turned on the bears for fun and profit.  I do not want the bears to become decorations on family room floors and walls.”

The Fish and Wildlife Service was contacted for comment after the Ninth Circuit ruling but did not respond.

Barring an appeal to the US Supreme Court, Preso says “the Fish and Wildlife Service now goes back to completing a big list of assignments and answering questions posed by the courts.”  He said those questions should have been addressed and resolved long before Wyoming moved forward with a hunting season. 

“We’re fortunate we didn’t have hunters going out and hoping to kill 23 bears,” he added. “Just look at this year, live bears are thrilling crowds of onlookers in Grand Teton and Yellowstone—animals that could have been in harm’s way if they had wandered outside the parks. How do I feel about the Ninth Circuit Court’s decision?  It’s a good day for those who care about grizzly bears and real recovery when it comes to wildlife.”


Todd Wilkinson
About Todd Wilkinson

Todd Wilkinson, founder of Mountain Journal,  is an American author and journalist proudly trained in the old school tradition. He's been a journalist for 35 years and writes for publications ranging from National Geographic to The Guardian. He is author of several books on topics ranging from scientific whistleblowers to Ted Turner and the story of Jackson Hole grizzly mother 399, the most famous bear in the world which features photographs by Thomas Mangelsen.  For more on Wilkinson's career, click here. (Photo by David J Swift).
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