Jim Porter: Grizzly bears de-listed from ‘threatened’ species list?
TAHOE/TRUCKEE andamp;#8212; andamp;#8220;This case involves one of the American Westandamp;#8217;s most iconic wild animals in one of its most iconic landscapes. The grizzly bear andamp;#8212; so named for the gray-tipped hairs that give it a andamp;#8216;grizzledandamp;#8217; appearance andamp;#8212; is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones.andamp;#8221;Thus begins the case of Greater Yellowstone Coalition Inc. vs. U.S. Fish and Wildlife Service and a dozen other defendants, a case filed in federal court to challenge the de-listing of grizzly bears from the Endangered Species Act andamp;#8220;threatenedandamp;#8221; list in the lower 48 states.Grizzly Bears on andamp;#8216;Threatenedandamp;#8217; ListFollowing a dramatic decline in grizzly bear populations in the Yellowstone region in parts of Wyoming, Montana and Idaho andamp;#8212; where the grizzly population was estimated to be between 136 and 312 bears, the U.S. Fish and Wildlife Service listed grizzlies as a andamp;#8220;threatenedandamp;#8221; species under the ESA. Interestingly, the grizzly mortality rates skyrocketed in the early 1970s after Yellowstone National Park closed the open-pit garbage dumps where the bears used to feed and tourists could view the bears up close. Since the listing in 1975, the Yellowstone grizzly population has rebounded significantly. The total population in the National Park area is estimated at more than 500 bears, which approaches Yellowstoneandamp;#8217;s bear carrying capacity. By all accounts the Grizzly Bear Recovery Plan has been a success. As a result, the Fish and Wildlife Service sought to remove the Yellowstone grizzly from the threatened species list.Endangered Species ActThe Secretary of the Interior maintains a list of all andamp;#8220;threatenedandamp;#8221; and andamp;#8220;endangeredandamp;#8221; species. An endangered species is one that is andamp;#8220;in danger of extinction throughout all or a significant portion of its range,andamp;#8221; while a threatened species is one that is andamp;#8220;likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.andamp;#8221; Listed species receive near-absolute legal protection against andamp;#8220;taking,andamp;#8221; which includes harassment, harm, hunting, killing, and significant habitat modification or degradation.Greater Yellowstone CoalitionA group calling itself Greater Yellowstone Coalition challenged the decision to de-list grizzly bears in and around Yellowstone, citing inadequate regulatory restrictions, failure to consider global warming and the whitebark pine beetle infestation, plus the Yellowstone grizzly population was too small to be de-listed.Trial JudgeThe trial court applauded the Grizzly Bear Recovery Plan and all the agencies involved in its implementation, noting the dramatic increase in grizzly bears in the Yellowstone region; however, the trial judge ruled against the proposed de-listing on two grounds: (1) the Recovery Plan failed to adequately analyze the decline in whitebark pine trees which generate seeds loved by grizzly bears especially just before hibernation, and (2) overall the Recovery Plan failed to provide adequate regulatory mechanisms to protect grizzlies.Court of AppealsThe federal court of appeals also praised the Recovery Plan but ruled the Recovery Plan needed to better analyze whether the continuing loss of whitebark pine trees and their seeds could jeopardize the population of Yellowstone grizzlies.On the other hand, the court of appeals found the Grizzly Bear Recovery Plan adequate to protect the grizzly bear andamp;#8212; our California State Animal, in case you forgot.So the bear remains on the federal threatened species list while more studies are done to analyze the impact from whitebark pine tree beetle infestation and the decline in pine seeds on Yellowstoneandamp;#8217;s grizzly bear population.DissentOne circuit judge dissented from the majority Opinion wanting more protections for grizzlies. So the battle to protect the once decimated grizzly population in the West continues. One thing is for sure, grizzly bearandamp;#8217;s survival depends on their ability to adapt to their surroundings and on humans ability to adapt to their presence andamp;#8212; two seemingly irreconcilable tensions.andamp;#8212; Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governorandamp;#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmandamp;#8217;s website http://www.portersimon.com.