Katelyn Scott
Associate Editor
Loyola University Chicago School of Law, JD 2019

In late June 2017, the Department of the Interior and U.S. Fish and Wildlife Service (FWS) officially announced that after 42 years, the population of grizzly bears in the Greater Yellowstone area could be delisted as an endangered species under the Endangered Species Act (ESA). The bears in areas surrounding Yellowstone National Park would now be under state control, a move which has been met with great resistance from environmentalists and some Native American tribes in the region. On August 30, 2017, EarthJustice filed a lawsuit alleging FWS failed to rationally address threats to grizzly bears, including consideration of the lower-48 population as a whole, and therefore violating the Endangered Species Act delisting procedures.

History of ESA protections of grizzly bears

Greater Yellowstone grizzly bears were one of the first animals listed under the ESA . FWS originally listed grizzly bears in 1975 as threatened in the lower 48 states due to illegal hunting, as well as the elimination of threats to livestock and humans. The population has since seen significant recovery due to cooperation of organizations forming the Interagency Grizzly Bear Committee, formed to manage habitats, research, education, and outreach. The ESA, under 50 CFR 17.40, protected grizzly bears from possession, transportation, taking, sale, and receipt of them or any parts of them, with a limited number of exceptions to protect people. Moreover, some states have enacted heightened statutory protections, beyond the Grizzly Bear Committee regulations, to further conserve the species.

Although grizzly bears were officially delisted in 2007, their delisting was quickly followed by the filing of a suit which led a federal district court to reinstate their protection. This past June,  after reaching a stable population of greater than 600, the grizzly bears were officially delisted once again; they will remain off the list so long as their population stays above 600 for the next five years.

What delisting means for regulating grizzly populations

Removal of the bears from the ESA places those outside the National Park in the control of the states. States can decide whether to place additional protections on their grizzly bear populations and also decide how to best deal with nuisance bears. This means that unless there are state regulations, bears are still able to be hunted, sold, and captured. Not only would private hunters be able to kill bears, recreational hunting guide companies can create expeditions for the Yellowstone grizzly bears. This can have unintended effects—in order for these bears to remain delisted, states must comply with the Final Conservation Strategy which requires maintaining an average population size of 674 and includes specified mortality thresholds.

While the prospect of organized hunts remains a threat, the states surrounding Yellowstone National Park have said that there is no rush to implement changes in the hunting policies of the bears, and that the rules governing the proposed “limited hunts” would still need to be developed. However, conservationists argue that lifting protections make the bears vulnerable, especially closer to the boarders of the park. Conservationists fear the trophy hunting market and the lack of regulatory protection for the hunting industry; companies in Alaska provide an excellent example of the manifestation of these conservationists’ fears. Further, they argue the concerns from the original delisting in 2007 are still present and that they had never been appropriately addressed, regardless of the attempts to change the rule.

Judicial challenge to delisting

The August 2017 lawsuit against the delisting came from a variety of groups, including the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity, and National Parks Conservation Association, represented by Earthjustice. This coalition’s argument is similar to the  2007 delisting suit. They argue that the food supply of the bears is declining, forcing the bears to a more heavily meat-based diet; this forced change in diet often results in abnormal and unnecessary human contact. As humans seek to protect themselves from the perceived “threat” of these bears, their defense tactics  cause the bears’ mortality rate to rise.

Compliance with the ESA requires a five-factor analysis to consider an animal for delisting, gauging the threats still present in effecting the population. If the species has seen significant improvement based on the five factor test, the delisting administrative process may begin. This complaint challenges the analysis of one of those factors, stating that FWS did not completely consider the threats to the habitat and the impact of conflict with human activity.

The coalition’s complaint recognizes the cap the Final Conservation Strategy places on trophy and recreational hunting, but argues that the policy does not place any limit on the killing due to management removals. The coalition argues that even if the killing goes beyond the threshold provided in the Final Conservation Strategy, states are still acting in compliance with the new rule so long as the killings are reported as having been the result of a conflict with human activity.

Citing to the decisions made on the previous delisting, the coalition states that the recent decision to delist failed to appropriately analyze the evidence of emerging threats and the negative impacts to the grizzly population; this expeditious approach is eerily reminiscent of the failed full-speed ahead approach taken before. The coalition calls for judicial action in order to ensure FWS’ compliance with the ESA and the delisting factors required under the Act.

Future of the grizzly bears in the lower 48

While the outcome of this case is still to be decided, similar moves for other protected populations of grizzly bears, including those within Glacier National Park, have been proposed. The court’s reinstatement of the listing or enforcement the delisting may determine whether further delisting occurs, as well as how states may be required to regulate grizzly bear population management and hunting. The impact may be even broader—with the outcome shaping the policies surrounding appropriate methods for complying with the ESA in future delisting matters.