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Judge: USFWS wrong to balk at Bitterroot grizzly bear recovery

Grizzly Bears
Posted at 10:15 AM, Mar 16, 2023

MISSOULA - A federal judge has ruled against the U.S. Fish and Wildlife Service, saying it illegally delayed actions related to recovering grizzly bears in the Bitterroot Mountains, so now, it must conduct another public process to determine the correct course of action.

On Wednesday, a week after hearing oral arguments, Missoula federal district judge Donald Molloy issued his ruling siding with two organizations that sued the Fish and Wildlife Service for not carrying out its own decision, made almost 23 years ago, to place an experimental population of 25 grizzlies in the Bitterroot Recovery Area.

The plaintiffs’ case boiled down to three actions - or in some cases, the inaction - that the Fish and Wildlife Service took or should take.

In 2000, after years of study and public comment, the Service finalized an environmental impact study and rule outlining the preferred action alternative, which was to create an experimental grizzly bear population under Sec. 10(j) of the Endangered Species Act. That section requires that no members of the species exist in the area where the experimental population is placed, and that was the case prior to 2000.

In addition to transplanting 25 bears, the 2000 rule also required the Service to create a citizen management committee and to educate the public on bear-aware sanitation and safety.

But then, in 2001, concerned by a lawsuit brought by the state of Idaho, the Service reversed course, saying it chose the “no-action” alternative instead. But the Service didn’t issue a Record of Decision. However, from that point on, it also took no action.

Molloy said the Alliance for the Wild Rockies and the Native Ecosystems Council had standing to challenge the USFWS rule issued in 2000, but not the 2001 rule. However, it’s in the details of the 2000 rule where the Service was found wanting.

Federal law allows courts to compel an agency to take action when an agency has a mandatory duty and has unreasonably delayed carrying out that duty.

Molloy pointed out that the federal attorneys acknowledged that a delay of more than 20 years is unreasonable. Even so, Molloy went through a six-point legal check of what constitutes an unreasonable delay and the plaintiffs’ arguments met four of them.

So that left only the question of whether the 2000 rule gave the Service a mandatory duty.

The rule committed USFWS to introducing 25 bears but also made that action discretionary based upon available funding. Even though that aspect wasn’t mandatory, Molloy found that the rule’s other requirements - the citizen’s committee, bear-aware education - were.

“Now, while it is not clear whether bears have entered the Experimental Population Area, they have entered the Bitterroot Ecosystem. Because the lack of preparation is likely to impact the health and safety of the people living in the area, this factor weighs in the Plaintiffs’ favor,” Molloy wrote.

Finally, the plaintiffs insisted that the Fish and Wildlife Service should complete a supplemental environmental impact study. Federal regulations require agencies to complete a supplemental study when significant changes or new circumstances are present and “a major Federal action remains to occur."

When the Service issued its 2000 rule, there was no evidence of grizzly bears in the Bitterroot. Now, there is. The plaintiffs said the new circumstances should trigger a supplemental study. The federal attorneys said the Service hadn’t planned to transplant bears so no action remains and no study is needed.

“The parties’ briefing on this issue is like two ships passing in the night,” Molloy wrote.

Once again, it came down to the non-discretionary parts of the 2000 rule that required the citizen’s committee and bear-aware safeguards and education. Molloy said those constituted the “major federal action” that remained.

Molloy agreed with the plaintiffs that reports of grizzly bears in the Bitterroot did justify the need to do a supplemental study, especially since their presence potentially invalidates the Section 10(j) conditions allowing an experimental population.

“The current presence of naturally occurring grizzly bears is a significant change in circumstances that undermines the basic premise on which the (Record of Decision) and the Final Rule were based. It may impact the advisability or feasibility of introducing an experimental population of bears,” Molloy wrote.

Molloy also pointed to case law that requires agencies to complete a supplemental process if they reject a previously chosen alternative. By not acting, Molloy said, the Service essentially went with the “No action” alternative, not the alternative it chose in its 2000 rule. So it should have done a supplemental analysis.

“The Service identified grizzly bear introduction into the Bitterroot Ecosystem as a priority twenty years ago. If that is no longer a priority, the Service cannot simply continue to ignore it,” Molloy wrote. “For the past two decades, the Service has acted as though the 2000 ROD and Final Rule never existed in the first instance. While an agency may procedurally alter course, if it does so, it must abide by (federal law).”

After ruling against the Fish and Wildlife Service, Molloy had two options. He could order the Fish and Wildlife Service to finally follow its 2000 rule. But, because the 2000 rule could be faulty because it assumed an experimental population was justified, he chose instead to order the Service to complete a supplemental study of what’s needed for grizzly bear recovery in the Bitterroot within a reasonable period of time.

“The remedy conundrum creates the unenviable prospect of forgiving one wrong to prevent another,” Molloy wrote.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.