Busting Through the Legal-ese: The Attorneys Working to Protect Grizzlies in the Courtroom

The future of Lower 48 grizzly bears is currently being decided by the U.S. 9th Circuit Court of Appeals. It’s a complicated case—as cases tend to be when science and politics intersect—but it’s safe to say that the attorneys arguing on behalf of the grizzlies are committed not only to the bears, but also to the principles of the Endangered Species Status (ESA).

Matthew Bishop, Tim Preso, and Bob Aland are the leading attorneys working on this case, and this week I had the opportunity to speak to them about the May 5th hearing. What struck me about all three conversations was that as I grappled to understand the nuance involved with the listing and delisting of grizzly bears, the attorneys all encouraged me not to get too deep into the engine of the case. Even a person with decent scientific literacy can drown in the legalese and specialized language of grizzly bear management and recovery, effectively losing focus on what this is really about. Each in his own way—but resolutely and matter-of-fact—the consensus from the lawyers was the same: The management of wildlife is political

There are hundreds of articles that explain the history of Lower 48 grizzly bears in great detail, but the essence is that prior to westward expansion an estimated 100,000 grizzly bears roamed across western North America. Trapping, hunting, and ranching pruned that number in short order and by the 1920’s, grizzly habitat had been reduced by a shocking 98%. By 1975—when grizzlies landed a spot on the ESA— the total number in the Lower 48 had dipped below 1000 and the number of grizzlies in the Greater Yellowstone Ecosystem (GYE) was estimated to have been between 136 and 312. 

Between 1975 and 2007, grizzlies remained protected under ESA guidelines until the U.S. Fish & Wildlife Service delisted them in 2007. Tribes and conservation groups pushed back, but protections were restored in 2009. Grizzlies remained protected by the ESA until 2017 when the USFWS again announced that the GYE grizzlies had reached their recovery goals and delisted for a second time. For the first time since 1974, hunting tags were issued for grizzly bears. Six lawsuits challenged the delisting, and in the 11th hour a judge restored full protection to GYE grizzlies and effectively cancelled the 2018 hunt.

You might be asking what this has to do with now, and in a way the answer is “everything.” As the old story goes, the more things change the more they stay the same.

Matthew Bishop, wildlife advocate and attorney for Western Environmental Law Center, believes that the impact of keystone species such as grizzly bears cannot be overstated. In a recent phone conversation, Bishop said, “if we look back to 1975, the goal all along was to restore natural connectivity between the subpopulations and we don’t have that yet.” Grizzlies currently reside in four of their six recovery ecosystems (the North Cascades Ecosystem and the Bitterroot Ecosystem have no known bears despite providing adequate habitat) and remain geographically isolated from each other.

Bishop went on to explain that looking at the GYE grizzlies or one or two healthy subpopulations that remain isolated does not indicate true recovery for the species—true recovery will require two or three areas that are doing well and are connected—and that will require commitments from the states and require use of the best available science, which judges have ruled the USFWS isn’t always doing. 

The government determined that the genetic health of GYE grizzlies isn’t an issue and the population can be self-supporting, but Bishop argues that this isn’t scientifically accurate and if bears don’t co-mingle on their own then translocation must be part of the management plan, though relying on humans should be a last resort, and the primary goal is to encourage organic movement of bears between recovery areas.

I also spoke with Bob Aland, an attorney who has provided pro-bono support of grizzly bears for over 15 years. I told Aland that my goal for this article is to summarize the past so the general public can understand how we got where we are now. Bob walked me through the Complaint he filed against the Department of the Interior and the Service in 2017 as it contains a detailed timeline of the history of listing and delisting the Lower 48 grizzlies.

As mentioned in the Complaint, “The “principal goal” of the ESA is recovery, which means to “return a listed species to a point at which protection under the Act is no longer required,” and, therefore, a species can be delisted based upon recovery “only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.” 

I asked Aland about numbers and counting methods—a hot topic for both sides of this case—and what the government uses as the basis for determining recovery. I asked specifically about the concept of “estimators” and we had a laugh as Aland explained that estimator is just a fancy word for counting, and that due to a variety of factors, grizzly bears are impossible to accurately count. Aland’s Complaint states that we “cannot, and will not, know the population size at any point in time and will have to rely on an abstract formula to estimate the population size.” Aland and I then shifted our conversation away from the technical, and chatted about grizzlies as icons, symbolic of the American west, and so culturally significant to the tribespeople that the impact on their lives cannot be minimized.

Tim Preso, attorney for Earthjustice representing the Northern Cheyenne Tribe, also encouraged me to step back from trying to understand the heavy science involved in this case, and instead focus on what is possible. Preso is optimistic in the potential for the subpopulations to link up, but says, “it’s going to require a tremendous commitment to the bears living in the peripheral areas.” A “durable recovery” for grizzlies is within reach, but will mean expanded education and outreach to reduce conflict. Preso said, “It’s also going to mean that when a bear migrates and shows up in the Bitterroot Valley—doing precisely what we hope they’ll do—that bear shouldn’t be hauled back where it came from.”

All of this is a lot to process and think about, so I asked Preso an enormous question, “Where does it end?” The pause before Preso’s answer held the weight of all of humanity’s questions that are simultaneously practical and unanswerable. Preso had already brought up the halted hunt in 2018, the one that would’ve taken the lives of 23 grizzlies, and I held that thought as he answered, “Every day that something bad doesn’t happen is a victory.” Two other conservation cases were argued in the U.S. 9th Circuit Court of Appeals on May 5th and those have been decided. The ruling for the grizzly bear relisting could come tomorrow or it could be several months away.

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