"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,