A legal foundation representing ranchers says a federal appeal of a relisting of Yellowstone area grizzly bears is lacking and needs to be reinforced.

“We are disappointed that the federal appellants seem to be unnecessarily conceding a number of issues. We will be discussing their brief with our clients to determine how best to move forward,” Cody J. Wisniewski, an attorney for Mountain States Legal Foundation in Lakewood, Colo., told Capital Press.

The foundation represents the Wyoming Stock Growers, Wyoming Farm Bureau Federation and Wyoming ranchers Charles C. Price and W. & M. Thoman in supporting a U.S. Justice Department and Department of Interior appeal of a Sept. 24, 2018, federal district court ruling reinstating Greater Yellowstone Ecosystem grizzlies as a threatened species. The U.S. Fish and Wildlife Service delisted them in 2017.

A DOJ opening appellate brief, filed May 24, says USFWS is not appealing the district court’s ruling on the inadequacy of regulatory mechanisms or on the need to consider the effect of delisting the Greater Yellowstone Ecosystem Distinct Population Segment on the rest of the species and it has already started working on the remand.

But the brief says the district court erred in requiring the Fish and Wildlife Service to conduct a “comprehensive review” of the entire listed species.

The Endangered Species Act imposes no such requirement and courts may not impose procedures not required by statute, the brief states.

“The court further erred in substituting its scientific judgment for that of USFWS on the matter of the bears’ genetic fitness, in violation of the foundational principles of judicial review of agency decision making. Accordingly, the district court’s decision should be reversed in part,” the brief argues.

“Thanks to decades of dedicated efforts by a broad coalition of federal, state and tribal agencies and scientists … the population is now conservatively estimated at about 700,” the brief states.

The district court held that USFWS failed to consider the effect of delisting the greater Yellowstone population on the rest of the listed species; failed to conduct a comprehensive review of the entire listed species; arbitrarily found that the bears were not threatened by inadequate regulatory mechanisms; and arbitrarily found that bears were not threatened by insufficient genetic diversity.

In separate action, the Center for Biological Diversity filed notice April 10 with the U.S. Department of the Interior and USFWS saying it will sue the administration if it does not draft a comprehensive grizzly bear recovery plan encompassing much of the West.

Grizzly bears in the lower 48 states were listed as threatened in 1975. At that time, their population in the Greater Yellowstone was estimated at 136. They were delisted in 2007 when their population reached 500 but were relisted by a court.

The latest delisting was in 2017 and that was overturned by a federal district court in Missoula, Mont., last Sept. 24. The relisting nullified limited grizzly bear hunting planned in Wyoming and Idaho.

In recent years, grizzlies have become worse than wolves in killing cattle and sheep in the northwest corner of Wyoming, Jim Magagna, executive vice president of Wyoming Stock Growers Association, has said.

A Thoman ranch hand was mauled by a grizzly several years ago, Wisniewski has said.

Central Washington field reporter

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