Should the famous Yellowstone-area grizzly bears be removed from the Endangered Species List or do they need more protection from hunting, habitat destruction and food shortages?
The Ninth Circuit Court of Appeals was in Portland this morning considering that question in a case that will determine whether the U.S. Fish and Wildlife Service can delist the grizzlies and hand over management to the states of Wyoming, Montana and Idaho.
The answer could hinge on whether there are enough protections in place for the bears once they're delisted (and states are allowed to issue hunting permits) and whether the bears truly rely on the whitebark pine trees, which have been decimated by pine beetles in recent years (and could be in for even more trouble as a warming climate welcomes more tree-killing beetle infestations).
Quick history: The U.S. Fish and Wildlife Service delisted Yellowstone bears in 2007, after their numbers climbed from 200 in 1983 to 550 in 2006. The Greater Yellowstone Coalition sued, saying the de-listing was illegal, and in 2009 a federal district court in Montana agreed.
The U.S. Fish and Wildlife Service has challenged that district court ruling, sending it to the Ninth Circuit Court of Appeals. Meanwhile, the bears are once again listed as threatened as of last year.
The district court sided with the coalition on two main points back in 2009:
- The delisting rules don't provide adequate "regulatory mechanisms" to protect the de-listed grizzlies.
- The whitebark pine tree, a key food source for the bears, is being wiped out by pine beetles (and is also being considered for endangered species protection in some areas). Dwindling food supplies pose a new threat to the grizzlies, driving bears into areas where they have more risky human interactions. There is also evidence suggesting grizzly bears don't reproduce as much when there are no whitebark pine nuts to eat.
Those two points were debated in detail at today's hearing in Portland's Pioneer Courthouse.
Challengers argued the bears need to remain listed because there aren't enough binding, legal protections for grizzly bears outside of Yellowstone National Park. The delisting rule doesn't do enough to limit state grizzly management or habitat impacts from new roads and development on federal land, said Coalition attorney Doug Honnald. Honnald also argued that the bears face a new, unprecedented threat from the loss of whitebark pine that isn't addressed in the de-listing rule.
Government counsel Allen Brabender defended the U.S. Fish and Wildlife Service's delisting decision, saying the states have agreed to keep grizzly populations above recovered levels with carefully controlled hunts and habitat protections. The best available science shows the bears can adapt to the decline in whitebark pine, he said, and research shows their populations have actually grown in years when the pine nuts were not available.
Brabender said a collaborative conservation strategy agreed to by state and federal agencies is designed ensure the protection of the delisted grizzly population. If that strategy isn't good enough for the court, he said, the standard for recovery is "impossibly high" and "likely will never be met."
"This agreement set the standard for state and federal cooperation, and set aside substantial amount of federally owned and controlled acreage for protection," he said. "If this kind of cooperation can't work for recovery, what will work?"
Justices Sidney Thomas, Richard Tallman and Susan Graber grilled Brabender on the challengers' arguments that there aren't enough legal controls over state management plans short of re-listing the species and that a lack of whitebark pine nuts could cause a decline in grizzly bear reproduction.
They also quizzed Honnald about what exactly it would take for his coalition to support a grizzly delisting given the protective measures that have already been agreed to by state and federal agencies.
Honnald said the delisting agreements aren't legally binding, so the conservation strategy they agreed to is "absolutely a meaningless document."
"It does not include an obligation. It includes an aspiration, " he said. "We don't think there's anything there that doesn't breathe discretion with every pore. It says, 'We'll decide each morning when we get up what we're going to do.'"
So, now we wait while the court deliberates. It can take up to a year for the Ninth Circuit Court to reach a decision.