Grizzly bear

An appeal of a judge’s decision to return the Yellowstone grizzly bear to federal protection will be heard next year.

A lawyer representing local ranchers says he is optimistic about overturning a judge’s decision to relist grizzly bears in the Greater Yellowstone Ecosystem as a threatened species under federal law.

“I’m pretty hopeful. The precedent in the 9th Circuit Court of Appeals is on our side,” said Cody J. Wisniewski, an attorney with the Mountain States Legal Foundation in Lakewood, Colo. “I think it’s very clear that under the text of the Endangered Species Act and the 9th Circuit precedent for scientific deference that we should be successful on appeal.”

The foundation represents the Wyoming Stock Growers, Wyoming Farm Bureau Federation and Wyoming ranchers Charles C. Price and W. & M. Thoman in supporting the appeal by the U.S. Justice Department and Department of the Interior.

The foundation filed its appellate brief June 21 saying a Sept. 24, 2018, ruling by U.S. District Judge Dana Christensen, in Missoula, Mont., “improperly expanded the scope of the ESA and substituted its judgment for that of U.S. Fish and Wildlife officials.”

Christensen reinstated Yellowstone grizzlies as a threatened species under the Endangered Species Act. USFWS had delisted them in 2017.

“All we are asking is that the 9th Circuit uphold text and plain meaning of the ESA as well as allow the scientists to interpret the science, not the courts,” Wisniewski said.

Yellowstone grizzly recovery is an “unqualified success story, in that the USFWS determined it is fully recovered,” Wisniewski said. About 700 grizzlies live in the Yellowstone ecosystem compared to 136 when they were listed in 1975.

The district court ordered USFWS to conduct a “comprehensive review” of the effect of a delisting on the entire species in the lower 48 states. The ESA does not require such a review, Wisniewski said.

DOJ and USFWS are contesting the scope but not some level of review, he said, while he is contesting any review as without legal foundation.

“The district court based its opinion on a District of Columbia Circuit Court ruling on the gray wolf but failed to look at the factual differences,” Wisniewski said.

USFWS is already trying to comply with the review, using federal resources on top of more than 20 years of research and interagency cooperation with Wyoming, Montana and Idaho, he said.

“Our other argument is that the district court substituted its scientific judgment for that of the agency,” he said.

The Obama administration tried to delist Yellowstone grizzlies in 2007 but was blocked in court.

“Two presidential administrations have attempted to delist. A failure would be a rejection of scientific consensus. Worse, it would be a clear message to all involved that some delisting attempts may simply be futile,” Wisniewski said.

Instead of recognizing successful recovery in the Yellowstone, “radical environmentalists have sought repeatedly, and for an ever-changing list of reasons, to invalidate the delisting of the grizzly,” he said.

“We represent everyday farmers and ranchers. it’s important for them to have local management. It’s the goal of the ESA to recover and delist species. The intent is to allow the federal government to step in to help recover a species and once it is to return management back to the state,” he said.

“Just because the grizzly bear might be more iconic than any other species does not mean that it should play by a different set of rules,” Wisniewski said.

The DOJ, the three states, the foundation and intervenors such as the National Rifle Association and Safari Club International have all filed opening appellant briefs.

Oral arguments before a three-member panel of the 9th U.S. Circuit Court of Appeals is likely in early to mid-2020, Wisniewski said. A ruling probably will follow a year later, he said.

The Property and Environmental Research Center, a Bozeman, Mont., organization promoting free market environmental solutions, and the Pacific Legal Foundation of Sacramento have also petitioned the court to accept their brief supporting the appellants.

“The ESA’s primary incentive for recovery efforts is the prospect of recovery, a return to state management and reduced regulatory burdens for landowners,” said Jonathan Wood, PERC researcher. “Unless delisting is a realistic prospect, the law’s restrictions can paradoxically discourage the protection and restoration of habitat.”

Central Washington field reporter

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