"What's Changed?" Judge Christensen Probes Grizzly Bear Delisting

by Louisa Willcox

On August 30th of this year an army of lawyers descended upon Missoula, Montana, to argue over whether a 2017 move by the US Fish & Wildlife Service (AKA “The Service”) to remove Endangered Species protections for Yellowstone’s grizzly bears was legal. Judge Dana Christensen, who presided over the contenders, repeated the refrain: “What’s changed?” This was a particularly pregnant question because over ten years ago, in that very courtroom, Christensen’s colleague Judge Donald Molloy had heard arguments regarding a previous effort by The Service to delist Yellowstone’s grizzlies. Talk about déjà vu.

In 2009 Judge Molloy agreed with conservation groups that the grizzly was still threatened by climate warming and a lack of adequate protections under state management. Grizzlies were relisted. Although Molloy’s opinion was partially reversed by the 9th Circuit Appellate Court, his ruling about the threat posed by warming temperatures withstood a second round of scrutiny.

Has the federal government adequately addressed the threat in intervening years? Are the states any more qualified to pick up the mantle of management? The question “what’s changed?” is central to Christensen’s deliberations about whether the Service’s current move to delist Yellowstone bears is justified and whether, as a consequence, Wyoming and Idaho can proceed with a grizzly bear trophy hunt on September 15. In the meantime, the hunt is banned.

The question “what’s changed?” made me reflect on the many twists and turns I have witnessed in the contentious battle over delisting Yellowstone’s grizzlies during the last three plus decades. Indeed, I have devoted these decades to the cause of protecting grizzlies in the Northern Rockies. That’s a big chunk of my life. As I perched on the crammed bench in the courtroom, I reflected on how much has—and has not—changed in the grizzly bear’s world, as well as in the world of those who care about the Great Bear.

A Grizzly’s Day in Court

A picture of the court, then and now, seems appropriate. The plain room, adorned with nothing but a clock, orients toward the judge’s raised seat—cushy compared to the hardwood benches where we sat quietly, as if awaiting a priest. Cell phones were banned, enforcing silence.

In contrast to ten years ago, I saw no one immediately identifiable as a rancher or hunter. All seemed to be either friends of the Great Bear or members of the press.

Spectacled and greying, Christensen entered promptly at 9 am with none of the flamboyant sweep of black robes that characterized his predecessor, Judge Molloy. But like Molloy, he commanded the courtroom like a general. He began with a surprise: “I am not ruling from the bench today,” over-throwing in a moment speculations among grizzly bear supporters.

While Molloy had been thorough, informed, and strict with time, Christensen took these qualities to a whole new level, even interrupting lawyers when they offered references. “I’ve read it,” he said more than once. With eyes narrowed as if about to doze off, the judge pursued his questions like a bloodhound, chin often on his hands as he listened. On several occasions he put up his own maps on overheads, getting visibly irritated when lawyers started to explain what was where. Like Molloy, he knew is shit and did not suffer fools.

Bear Attorneys

With six lawsuits brought by plaintiffs—but judiciously consolidated into one—and a phalanx of intervenors bolstering already ample federal lawyers, it was a field day for attorneys who, to a stranger’s eye, might have otherwise appeared interchangeable in dark suits. But then as now, what they stood for could not have been more different: life versus death, change versus the status quo, compassion versus fear.

There was only one woman among the lot, the State of Idaho’s lawyer Cathleen Trevor. A disgrace to her sex, she seemed the most fearful of all, invoking the human fatalities that occurred during 2010 at Soda Butte Campground, outside of Yellowstone, and in 1967 during the “Night of the Grizzly,” when two women were killed by grizzlies in separate incidents in Glacier Park. She clearly implied that continued protections would inspire grizzlies to run amok and hunt down people. Really?

Both sets of fatalities occurred in or near National Parks, where the states will never have jurisdiction. Moreover, Ms. Trevor seemed to imply that grizzlies need to be slaughtered to save humankind. Is this the promise of state management?

Several attorneys led the charge for the Bear, particularly Tim Preso of Earthjustice, Nick Arrivo of the Humane Society and Matt Bishop of Western Environmental Law Center. Slim and soft spoken, Tim was the only other bear advocate besides me who was in the courtroom 10 years ago. Bob Aland, representing himself, was the elder. One of the few lawyers with no speck of grey, Nick sounded like he had an advanced degree in bearology, as did Matt, whose bearded face had long been a familiar sight in this court.

Amazingly, the lawyers proceeded to discuss science—lag times, mortality trends, population monitoring, Chao2, connectivity, viability and genetics—as if they were researchers employed by the Grizzly Bear Study Team. True, most had been coached right up till the last minute by my husband, Dr. David Mattson, who had been a member of the Study Team for years – but even so, they were masters of the material. (Needless-to-say, David was too nervous to attend the hearing, opting instead to walk our dog, who as fate would have it, resembles a small bear).

The bear’s attorneys gave the case their best shot. Now it is a matter of waiting on the wisdom of Judge Christensen.

Regardless of the outcome, our day in court offered some interesting highlights….

The Continuing Saga of Climate Change: Who Would Have Thunk?

Last time around, we were in the midst of an unprecedented collapse of whitebark pine, whose fatty seeds were (and in places still are) a staple for Yellowstone’s grizzlies, especially females packing on pounds during late summer and fall in order sustain themselves and newborn cubs through the following winter and spring. Anyone with open eyes could see a massive sea of red along the ridgetops—needles of trees dying from swarms of tiny mountain pine beetles. The cause? Warming winter temperatures, which had allowed beetles to survive at higher altitudes than ever before. The problem is that whitebark pine did not evolve with beetles and, without defenses, are basically sitting ducks.

But you would not have known this from arguments made by federal attorneys. At the time, they claimed that only perhaps 16% of whitebark had been affected, and that grizzlies didn’t need whitebark seeds anyway. The truth was that Yellowstone’s grizzlies did rely on these seeds, as one of only four major foods that provided most of their annual caloric intake. And, by the mid-2000s, roughly 70% of whitebark had died in an outbreak that showed no signs of stopping.

How did we know this? Certainly not from any studies undertaken by The Service. They were much too invested in perpetuating their ignorance. It was up to the friends of the grizzlies, including Yours Truly, to initiate a study that comprehensively assessed the health of whitebark pine. The study was a cosponsored by the US Forest Service and entailed 6 weeks of mountain flying with veteran pilot Bruce Gordon. (Sorry Bruce for throwing up in your plane). Dr. Jesse Logan and others involved in the project published the research in the prestigious journal Ecology, laying claim to the best available science even to this day. Completing the relevant connections, David first tied the health of whitebark to the health of the bear, a link later confirmed, despite themselves, by the Interagency Grizzly Bear Study Team.

Under the Endangered Species Act (ESA), the government is required to use the best available science, not just a convenient story. Judge Molloy was persuaded that the government had irrationally dismissed the problem, ordering restoration of protections for the bear.

What no one could guess then was how exactly bears would adapt to the loss of whitebark pine seeds. Under pressure from states eager to seize primary authority over management of grizzlies, a complicit federal government threw gobs of money at the problem. The result? More than a dozen publications, written by researchers slaved to financial dependence on The Service, aimed at bolstering the case that bears were doing fine.

Virtually all of this research relied on impenetrable models, flawed assumptions, faulty logic, and data that the government tenaciously hides, even though taxpayers paid for its collection. Their conclusions? Bears are omnivores (duh). Dandelions and ants are perfectly fine substitutes for calorie rich pine seeds (Really?). And density of bears is increasing, even though bear numbers have flat-lined and the population’s distribution has expanded by over 50% —which would mean that densities have axiomatically decreased. (Hmm.) We paid for all that?

Eating More Meat Leads to More Run-ins with People

As a factual matter, much has changed. Known for being resourceful, grizzlies have indeed found other high calorie foods, largely in the form of meat. In a trend I would not then have predicted, bears are increasingly predating on cows and scavenging elk meat left by big game hunters.

Even though the Yellowstone ecosystem supports over 400,000 cows—more than all the elk, bison, and deer combined—most ranchers do not have problems with grizzlies. But a few do, especially an affluent handful who graze lands on national forests in the upper Green River area of Wyoming. And as fate would have it, some of them have a hot line to Wyoming’s equally affluent governor. Instead of pursuing proven measures to avoid conflicts, these ranchers have found it easier to pick up the phone than a can of bear spray. They were, of course, represented in the courtroom by lawyers who pled their case as “po’ hard-working cow-folk.”

Grizzlies have also been increasingly gobbling up elk gut piles left by big game hunters. Learning that the sound of a gunshot can be a dinner bell, bears are mixing it up with hunters in contests that grizzlies typically lose. In contrast to ten plus years ago, when the leading cause of bear deaths was related to garbage, now cattle and hunter related conflicts are the greatest killers of grizzlies.

Because more bears are scrambling to make up for the loss of whitebark seeds often nearer people, we are seeing more conflicts and an unprecedented spike in grizzly bear deaths. This trend shows no sign of abating. Indeed, Wyoming plans to further shrink the population. With record levels of mortality since 2015, scientists fear that the population may be at a tipping point-- just as trophy hunters are taking aim at grizzlies.

It was no surprise that the NRA and Safari Club were also well represented last week. Any perceived threat to hunting, especially trophy hunting, is seen as an anathema by gun owners besotted by their ideology. But that was less the case a decade ago, when hunting deer and elk was seen primarily as a way to put meat in the freezer. By contrast, bear hunting is simply about ego gratification. While the judge will almost certainly not rule on the merits of trophy hunting, as such, the ethics behind it are now openly and publicly on trial.

Carving Out Populations for the Purpose of Delisting

Also figuratively on trial, recent legal opinions have changed interpretations about the merits and even legality of carving out individual populations (i.e., Distinct Population Segments, or DPSs) from a larger interdependent whole simply to remove ESA protections. This is, in fact, exactly what The Service did with Yellowstone’s grizzly bear population. As a result, this politically expedient maneuver has become a central issue in the current round of litigation.

Two years ago, the government lost a case involving Great Lakes wolves because it failed to look at implications for remaining endangered wolves of carving out and delisting the most robust populations. (HSUS' Nick Arrivo helped litigate that case too). The lower court’s opinion was upheld on appeal. The problem was that wolves in nearby areas were perhaps too few to be recovered on their own and would likely be abandoned in the absence of any specific duty on the part of the government to help them.

This poses a threat to grizzlies, too. As with wolves, lower-48 grizzly bear populations were listed in the mid-1970s, before The Service’s DPS policy had been fabricated. And as with wolves, hunting on the periphery of otherwise robust bear populations could affect the potential for recovery elsewhere. In Greater Yellowstone, hunting grizzlies is likely to reverse recent expansions, thereby dashing hopes to reconnect the long-isolated grizzlies here with bears in the Glacier ecosystem, as well as colonization of the vast Selway Bitterroot ecosystem, where grizzlies were eliminated during the heyday of human killing. Independent scientists unanimously agree that recovery of a “meta-population” of several thousand grizzlies, requiring connection of all remaining populations, is vital to genetic health and avoiding longer-term risks of extirpation.

But in the courtroom, Judge Christensen didn’t feature science as much as agency policies. He hearkened back to The Service’s own 1982 Grizzly Bear Recovery Plan, which the federal attorney acknowledged he had not read, but in which the government had said that recovery of three populations was essential — “not one or two.”

Exploding Public Interest in Grizzlies and Trophy Hunting

There were plenty of empty seats in court ten years ago, but last Thursday even the overflow room was full. People had lined up in front of the courthouse beginning at 7 am to make sure they got a seat, some standing with signs “Save the Yellowstone Grizzly.” Many had logged a day’s drive or more to be there.

Among these were founders of a new Jackson-based group, Shootem With a Camera. Formed to protest Wyoming’s planned trophy hunt, members comprised mostly of women have applied for hunting tags with no intention of shooting a grizzly with anything but a camera. Two, including renowned photographer Tom Mangelsen, were drawn by lottery out of a pool of thousands to be awarded one of Wyoming’s grizzly bear ‘hunting’ licenses. Dubbed the “Shootem ladies,” they are showing with their wallets that they can no longer be ignored by Wyoming’s wildlife managers. Needless-to-say, members of the media are flocking to follow them around during the hunt if it goes forward.

Another relatively new group, Don’t Delist Grizzlies (also led by women) has, in short order, made an enormous impact on the delisting debate. With leaders from New Jersey and California, the Don’t Delisters embody a trend of ever-expanding national commitment to saving what is left of our wildlife and wild places.

But a few groups, notably the Sierra Club, have been around and engaged with grizzly bear protection for a long time. Founded over a century ago, the group espouses the philosophy of “relentless pressure, relentlessly applied.” Staffer Bonnie Rice embodies that view, quietly building opposition to delisting years before it became the fashionable trend that it is now.

If there ever was any doubt that grizzlies are the purview of a few bureaucrats, industry spokesmen, or aging conservationists, that doubt has been put to rest. The fate of the grizzly bear is huge damn deal across the country.

Ten years ago, Federal Grizzly Bear Recovery Coordinator Chris Servheen, who recently retired after pushing premature delisting for over 25 years, dismissed petitions such as circulated by Don’t Delist Grizzlies and others as “mindless form letters.” What would he say now? Despite living in Missoula, Servheen was nowhere to be seen.

I admit too that I was wrong about the future of public interest in grizzlies. In an internal memo I wrote in 2002, I said: “We will be challenged to keep this issue in the public consciousness.” Knowing what I know now, I could have retired sooner.

Tribes: A New and Ancient Force for Bears

Grizzly bears have long been seen by native people as relatives, teachers, and healers. To Tribes, the notion of hunting grizzlies for sport is nothing short of appalling. While this view is ancient, its political expression is relatively recent. But during the last two years over 270 Tribes from across the country have signed a treaty opposing delisting and trophy hunting and demanding respectful consultation by the federal governement.

The presence of Indians in the courtroom last week could not be ignored. In fact, the attorney representing the Crow and other Tribes, as well as traditional societies and medicine men, was the first to speak.

Also present in the court were Johnny Arlee, Cultural and Spiritual Advisor of the Salish and Kootenai Tribes; Jimmy St. Goddard, Blackfeet Elder; and William Walks Along, a leader of the Northern Cheyenne. Like others, they had driven many miles. But by contrast, as members of sovereign nations they have special rights. The government is legally required to protect their religious freedom and consult with Tribes before possibly harming their interests. Both issues were clearly at stake with The Service’s move to delist Yellowstone’s grizzlies. Having suffered so much harm at the hands of the dominant white culture, consultation and respect are the least that can be afforded to Tribes today.

The government’s decision to blow off the Tribes is nothing short of shocking. In a telling incident three years ago, at a meeting of almost wholly white grizzly bear managers, officials from Wyoming Game and Fish disconnected the microphone when James Walks Along, William’s brother and an envoy for the Northern Cheyenne Tribe, attempted to give official testimony. A video of the incident went viral, sparking outrage from Indians across the country.

Tribes are not just opposed to trophy hunting. As sovereign nations, they are asking for government-to-government relationships in the management of grizzlies. And, they have demonstrated their expertise. The Blackfeet and Salish and Kootenai Tribes have lots of grizzlies and have shown repeatedly that they know how to avoid conflicts.

Tribes such as the Crow and Northern Cheyenne also have claim to substantial areas where grizzlies were extirpated long ago but could now be recovered. Farther south, grizzlies are now recolonizing wild lands on the Wind River Reservation in Wyoming, where the Eastern Shoshone and Northern Arapaho Tribes have prohibited any hunting of grizzly bears.

The point is that Tribes constitute a major force in grizzly bear recovery and deserve recognition and deference by the US government.

What Hasn’t Changed: Narratives, Hubris and State Management

For decades, state and federal officials have asked judges to suspend their judgment and simply trust them, claiming that delisting is essential to building public support for bears. Their attorneys parroted the mantra last week, with a whine that implied: “C’mon judge, we did what you asked – here is a pile of paper, now give us the keys.”

The problem is that there is no evidence that delisting has any relationship to public support for grizzlies, and in turn the ESA. Zero. Zip. Nada. Yet this narrative continues to be tenacious and, at times, extreme. Nearly 10 years ago, after losing in Montana federal District Court, Recovery Coordinator Servheen—a major proponent of the narrative—ranted: “If the Molloy ruling stands, the Endangered Species Act is unworkable… Cooperative efforts to manage grizzlies will fall apart. We need success stories with delistings… These types of lawsuits will prevent us from delisting any species anytime, anywhere in the US.”

Really? This and other legal challenges have succeeded, yet over a dozen species have been since delisted. Meanwhile public support for grizzlies has remained strong, as has support for the ESA. Cooperative efforts to coexist with grizzlies have in fact increased with the help of tools like bear spray, electric fence, and livestock guardian dogs. And more people than ever are visiting Greater Yellowstone drawn largely by the presence of grizzlies and other wildlife.

In a variant on their well-worn screed, government lawyers again claimed that delisting would somehow allow The Service to recover grizzlies in other places, notably the Northern Continental Divide around Glacier Park. “And the Cabinet Yaak?” asked Christensen, who recently ruled that the government could not justify its failure to increase the level of ESA protections for this critically endangered population – a move that would likely strengthen protections for the last 40 or so grizzlies living there.

It is true that more is needed to recover grizzlies everywhere it lives, in all of the 3% of the lands where they roamed prior to the arrival of European settlers. But it is not true that delisting isolated populations creates more incentives or momentum to accomplish that goal. The fact is that proponents of delisting advocate gutting the ESA and starving the US Fish and Wildlife Service -- regardless of the rate at which ESA protections are removed for listed species.

What drives such myths? Partly, it is self-delusional group think. But another factor is entrenched government bureaucracies with a political agenda. This has not changed a jot in decades. David and I have written much on this topic, here and here and here.

Grizzly bear management has largely been co-opted by regressive state officials in Wyoming and Idaho who are, in turn, joined at the hip with hunters whose dollars perpetuate pro-killing cultures and philosophies. Even so, other states, including comparatively poor ones such as Missouri and Arkansas, have broadened their financial base beyond hunters. This, in turn, has catalyzed an increased focus on nongame species. Closer to home, citizens who enjoy watching rather than hunting wildlife are also demanding a say in management, just as hunter numbers are declining.

The Waiting: Hardly Alone This Time

At a personal level, sitting in the courtroom with no electronic distractions, I had a chance to reflect on the question “what’s changed?” for me. Although I have sat through countless hearings on grizzly bear issues, spanning multiple decades, this one felt different.

Perhaps because I barely had room to take notes, this hearing made me more fully appreciate that I am not alone in caring for the bear. Indeed, the growing army of citizens who oppose trophy hunting and support stronger protections gives me hope for the future.

What has changed? There is no doubt that the grizzly bear’s food base has unraveled, with the tanking of whitebark pine and cutthroat trout, and the likely continued decline of other foods driven by warming temperatures. And, there are more of us moving to and visiting the Greater Yellowstone, seeking opportunities to see animals like grizzlies. This trend could further escalate problems, or not, depending on the extent to which we choose to live amicably with grizzlies – choices that necessarily need to manifest in our systems of governance.

It is worth noting that Romania’s Carpathian Mountains support roughly 6,000 grizzlies in an ecosystem as large as that of the Greater Yellowstone, where only 1/10th as many grizzlies hang on. Yet many, many, more people live in and amongst the Carpathian’s bears -- living proof that lots of people in a modern society can coexist with lots and lots of grizzlies.

At one level, the Great Bear’s political world is worsening, with the Trump administration promoting development at all costs and poised to shred the ESA. But at another level, in Judge Christensen’s courtroom as well as in homes across the country, people and Tribes are rising up on behalf of animals, such as grizzlies, that would otherwise have no voice. Meanwhile, the economic backbone of the region has changed from being dependent on extractive industries to being rooted in the attraction and value of untrammeled wild nature. Even so, there is no denying that a well-armed and politically-influential minority can quickly reverse forty plus years of hard won progress towards recovering grizzly bears.

In part, the question “what’s changed?” is up to the Judge to answer—for now. But ultimately the American public gets to decide whether a grizzly is worth more alive than mounted on a wall.

As the late Tom Petty famously sang: “The waiting is hardest part.”