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Attorneys debate USFWS inaction in Bitterroot grizzly recovery

Bitterroot Front
Posted at 9:42 AM, Mar 08, 2023

MISSOUA - A Missoula federal judge heard oral arguments Tuesday on why the U.S. Fish and Wildlife Service (USFWS) has failed to recover the Bitterroot population of grizzly bears for the past two decades.

Federal district judge Donald Molloy peppered attorneys with an hour’s worth of questions about the Endangered Species Act and the National Environmental Policy Act to try to drill down to the root of why the U.S. Fish and Wildlife Service has done nothing to recover grizzly bears in the Bitterroot Ecosystem after issuing two conflicting rules in 2000 and 2001. The two rules prompted circular arguments as to which rule applied and which could be challenged.

Tuesday’s hearing was the culmination of a lawsuit filed by the Alliance for the Wild Rockies and Native Ecosystems Council against the U.S. Fish and Wildlife Service and Grizzly Bear Recovery Coordinator Hillary Cooley in November 2021.

In November 2000, after considering six alternatives, the Service issued a Record of Decision and a rule saying it chose an alternative where 25 non-conflict grizzly bears from Canada or the U.S. would be transplanted into the Bitterroot recovery area over five years. The decision also said bears would be transplanted during the second year of implementation “subject to available funding.”

Since a grizzly population hadn’t existed in the Bitterroot since about 1940, the transplanted bears were to be considered “experimental,” falling under Section 10(j) of the Endangered Species Act, which applies only if the transplant area is outside the species’ current range. The grey wolves transplanted into the Northern Rockies in the mid-1990s were also a 10(j) experimental population.

Less than a year later, the Service issued a proposed rule in June 2001 saying it had changed its mind and was considering the “no action” alternative instead. But the Service never finalized that decision.

After Molloy asked what - other than a presidential election - happened between 2000 and 2001, plaintiffs’ attorney Rebecca Smith said internal emails showed U.S. Fish and Wildlife Service changed to the no-action alternative to squelch a lawsuit filed by the state of Idaho.

But when the Service asked for public comment on the 2001 rule, the comments overwhelmingly opposed it, preferring the 2000 rule instead. That put the Service in a bind.

“And then they just let it sit and never took any action,” Smith said.

Owen Moroney, attorney for the state of Idaho, said Idaho withdrew its lawsuit around that time.

Molloy asked each lawyer in turn the same legal question: is a rule enforceable or challengeable if it was proposed but never finalized?

“There’s nothing. How are you going to compel (the government) to do something that isn’t anything?” Molloy said.

Both Smith and U.S. Fish and Wildlife attorney Davis Backer said the 2000 rule, which had a record of decision, is the active rule.

But Smith said the Service has been acting like it finalized the no-action alternative. So plaintiffs want the Service to issue a statement publicly rejecting the 2001 rule.

But the problem with the 2000 rule is it’s based on the 10(j) regulation, which requires that no bears exist in the Bitterroot. However, during the past two decades, more grizzlies have been reported in the Bitterroot Mountains, and the Idaho Department of Fish and Game has found evidence of a grizzly bear den. Section 10(j) doesn’t apply to migrating bears.

The 2000 rule also requires the Service to take bears captured near the Bitterroot ecosystem and transplant them into the Bitterroot wilderness, not to the Sapphire Mountains, which is where a pair of migrating bears were moved last year.

“The remedy we’re requesting is a remand for a supplemental (environmental impact statement), which would result in a new record of decision,” Smith said. “This Bitterroot population is the lynchpin to recovery and delisting of the entire lower 48 states’ grizzly bear population.”

Federal attorney Davis Backer said the plaintiffs have no standing to challenge the rules, partly because they didn’t petition the Fish and Wildlife Service to withdraw the 2001 rule. He said only the Center for Biological Diversity might have standing because they may have sent a petition several years ago. Molloy indicated he thought the plaintiffs had standing.

The Service has taken no action, Backer said, because the 2000 rule said transplanting bears was discretionary based on available funding. Backer said the Service had been spending all its money on preserving grizzly populations in other recovery areas.

Molloy asked, assuming moving bears was discretionary if 22 years was a reasonable delay. Backer said it was unreasonable.

Smith argued that funding didn’t explain the Service’s lack of action because the 2000 rule had other requirements that weren’t related to funding, such as the creation of a Bitterroot citizen committee and sanitation improvements, that were never carried out. Backer said those actions were related to the bear transplants so the Service wouldn’t do anything until it was ready to move bears.

NEPA attorney Leeann Kim said no further environmental study was required because a couple of bears in the Bitterroot cannot negate the 10(j) rule. Idaho attorney Owen Moroney said most of the bears were moving through so they don’t qualify as a population. Molloy didn’t seem convinced.

“If there’s evidence there are grizzly bears on the ground, whether there’s three or 15, it seems that changes the underlying premise that there are no bears there” Molloy said. “And that would indicate the need for further investigation regarding the existence of the 10(j) rule.”

Molloy told Smith that if he required the Fish and Wildlife Service to come up with a new record of decision, the Service might no longer allow bear transplants under Section 10(j), which might slow grizzly recovery.

Smith said the Service would have to develop a new EIS first.

“The reason we want that process is it’s a public process and scientific experts would weigh in. The agency can’t make just any decision - it has to comply with NEPA and the Endangered Species Act. That is where there would be a massive public participation effort,” Smith said.

Molloy told the attorneys he would try to put a ruling out “in a not-lengthy delay, but there are still things to consider.”

Contact reporter Laura Lundquist at