CHAPTER 3 BRINGING BACK THE GREAT BEAR: CHALLENGES AND OPPORTUNITIES OF GRIZZLY RESTORATION IN THE NORTHERN ROCKIES

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 3
BRINGING BACK THE GREAT BEAR: CHALLENGES AND OPPORTUNITIES OF GRIZZLY RESTORATION IN THE NORTHERN ROCKIES
Tom France
Regional Executive Director
Northern Rockies, Prairies, and Pacific Regional Center, National Wildlife Federation
Missoula, MT
Daniel Brister
J.D. Candidate 2020
Alexander Blewett III School of Law, University of Montana
Missoula, MT

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TOM FRANCE, Regional Executive Director, Northern Rockies, Prairies, and Pacific Regional Center, National Wildlife Federation, Missoula, MT

Introduction - Grizzly Bears and their Hold on the American Imagination

Saving, protecting, and conserving wildlife have been American passions since the beginning of the last century. Some species have had an outsized importance in these efforts, none more so than the grizzly bear. Grizzlies grab our imagination and transform our perceptions of wild lands, reminding us that there are places we cannot visit without an abundance of care and caution.

Grizzlies are inexorably tied to place in the public mind, wild places at the edge of civilization. In some ways, the backcountry of Glacier and Yellowstone National Parks are almost synonymous with grizzly bears. When grizzlies are gone, the essential character of the land changes. Aldo Leopold, writing of one of the last grizzlies to be trapped in Arizona, described its effect on Escudilla, the mountain that had been the bear's stronghold: "Escudilla still hangs on the horizon, but when you see it you no longer think of bear. It's only a mountain now." ¹

As the West was settled, grizzlies disappeared from many mountains. 50,000 Grizzly Bears (Ursus arctos horribilis) once inhabited the lower 48 United States, ranging from Canada

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to Mexico and from the vast expanses of the Great Plains to coastal California.² As European settlers spread across the West, grizzly numbers plummeted. Few people questioned the wisdom of killing an animal known to prey on both livestock and people. Bears were shot, trapped, and poisoned, their numbers reduced to just a few hundred, mostly isolated in two last strongholds in and around Glacier and Yellowstone National Parks.³

Because of their hold on America's imagination, the plight of the grizzly helped Congress see the wisdom of protecting not only bears but all threatened and endangered wildlife. Congress specifically referenced grizzlies in its rationale for passing the Endangered Species Act in 1973,⁴ and in 1975 grizzlies were one of the first species protected under the new law when the Fish and Wildlife Service listed the grizzly bear as a "threatened" species throughout the lower 48 states.⁵

Thanks to their ESA protections and the 45 years of conservation programs mandated and carried out under the Act, grizzlies are once again found on many mountains where they have been absent for decades. Grizzly populations in both the Greater Yellowstone Ecosystem (GYE) and the Northern Continental Divide Ecosystem (NCDE), which includes Glacier National Park, have met government-established recovery objectives. In many ways, grizzlies are one of the great success stories of both the ESA and the American wildlife conservation movement. But this success has raised new challenges about both how the ESA works and how grizzlies should be managed.

Even as recovery criteria agreed upon first in 1981 and again in 1992 have been met, important issues have arisen that call into question the recovery effort. Foremost among these

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challenges is a recent federal district court ruling that rejected a U.S. Fish and Wildlife Service (FWS) proposal to delist the Yellowstone grizzly, separate and distinct from other grizzly bear populations.⁶ The disjunctive strategy for achieving recovery in separate, isolated geographies was central to the court's decision:

By delisting the Greater Yellowstone grizzly without analyzing how delisting would affect the remaining members of the lower-48 grizzly designation, the Service failed to consider how reduced protections in the Greater Yellowstone Ecosystem would impact the other grizzly populations. Thus, the Service "entirely failed to consider an important aspect of the problem." ⁷

This district court decision, coupled with and informed by a similar court decision on wolf delisting,⁸ raises challenging questions about how grizzly bear conservation should move forward.

Federal-state partnerships in particular have been forged around the presumption of timely delisting in individual grizzly bear ecosystems and the robust bear populations found in the GYE and NCDE have convinced biologists in both federal and state agencies that these populations no longer need the heightened protections of the ESA.⁹ Meanwhile, recovery in the remaining four grizzly ecosystems is far from assured and will require decades of work.¹⁰ Finding a path forward to integrate the successes achieved with the unrealized goals remaining will test not only the Fish and Wildlife Service and its agency partners, but also the network of non-governmental organizations and public citizens who are deeply engaged and invested in grizzly conservation work. Part of the answer may lie in reimaging the recovery planning process

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as more than a merely biological process and incorporating a more broadly-based social contract to garner a wide range of citizen support.

Passage of the Endangered Species Act and Protection of the Grizzly Bear

Closely identified with efforts to prevent the extinction of the bald eagle, the grey wolf, and the grizzly bear, the Endangered Species Act (ESA) was passed into law in 1973 "to halt and reverse the trend toward species extinction."¹¹ Acknowledging that such efforts were to be undertaken at "whatever the cost,"¹² the Supreme Court recognized the ESA as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."¹³

If FWS determines a species qualifies for endangered or threatened status, that species must be added to a list of protected species published in the Federal Register.¹⁴ Listed species receive strong federal protections, including proscriptions on possessing, killing, selling, importing, or exporting individuals of that species.¹⁵ Criminal sanctions for knowingly violating these prohibitions include fines of up to $50,000 or a year in prison.¹⁶

An "endangered" species is defined under the ESA as one that "is in danger of extinction throughout all or a significant portion of its range[.]"¹⁷ A "threatened" species is one that "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."¹⁸ Species listed under the ESA enjoy many protections. Federal agencies are required to "insure that any action authorized, funded or carried out by such agency

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. . . is not likely to jeopardize the continued existence of" that species.¹⁹ Additionally, the "take" of any member of a listed species is prohibited, with very limited exceptions.²⁰ "Take" is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting-or attempting to engage in any such conduct.²¹

In determining whether a species qualifies for endangered or threatened status, the Secretary of the Interior is directed to apply five factors. This five factor analysis looks at: (1) "the present or threatened destruction, modification, or curtailment of habitat or range"; (2) "overutilization for commercial, recreational, scientific or educational purposes"; (3) "disease or predation"; (4) "the inadequacy of existing regulatory mechanisms"; and (5) "other natural or manmade factors affecting [the species'] continued existence."²² The Secretary is required to rely upon the best available scientific and commercial data in making such a determination.²³ The Secretary has delegated to the U.S. Fish and Wildlife Service the authority to determine whether a terrestrial species meets the requirements to be considered "threatened" or "endangered."²⁴

The ESA defines "species" as "any subspecies of fish or wildlife or plants," and, "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."²⁵ Neither the ESA nor agency regulations defines the term "distinct population segment." FWS has issued policy guidance stating that the existence of a "distinct population segment" turns upon the discreteness and significance of a sub-population as compared to the

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population as a whole.²⁶ This policy guidance stresses that the FWS' authority to recognize distinct population segments should be "exercised sparingly."²⁷

The ESA requires the FWS to revise its lists of endangered and threatened species "from time to time" in response to "recent determinations, designations, and revisions."²⁸ FWS is also required, every five years, to "review and determine whether any such species should be (1) removed from the list (delisted); (2) changed in status from "endangered" to "threatened" (down listed); or (3) changed in status from "threatened" to "endangered" (up listed).²⁹

In 1975, three years after passage of the ESA, the FWS listed the entire population of grizzly bears in the lower forty-eight United States as a threatened species.³⁰ At the time, this population was thought to number between 800 and 1,000 individual bears and the species had been extirpated from 98% of its habitat. In the GYE, the total number of grizzly bears was estimated at just 136 individuals.³¹

In 1981, six years after the grizzlies were listed under the ESA, a group of wildlife biologists who had dedicated their professional lives to grizzly conservation-was assembled to draft the initial Grizzly Bear Recovery Plan.³² Under the ESA, the purpose of this recovery plan was to "delineate reasonable actions that are believed to be required to recover and/or protect"

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the grizzly bear...