Photo by Greg Von Doersten
Late afternoon of September 24, Federal Judge Dana Christensen restored endangered species protections for Yellowstone grizzly bears, putting to rest for now the threat of a grizzly bear trophy hunt. With a sigh of relief, I noticed the pungent smell of cottonwoods by the creek where we live and watched a few gold leaves flutter to the earth. I was not sure when I had last taken note of smell or color, as if the months-long fight over grizzly bear delisting had stolen my senses.
But before I had finished reading the Judge’s 48-page ruling, a reporter called for my response. He asked how this moment feels compared to 2009 when a different judge reinstated Endangered Species Act (ESA) protections the last time that the Fish & Wildlife Service (FWS) had attempted to remove them. I confessed to being delighted, but deeply troubled—in enough different ways, and at enough different levels that I can only begin to articulate it all in this piece. More will follow.
As I reflect on recent events, I am also mourning the loss all over again of one of my heroes, musician Tom Petty, who died one year ago. His music has crept into this piece, but don’t worry if the insider references elude you. I had fun making the connections.
Of more immediate relevance here, Judge Christensen’s ruling represents the fourth major legal victory in 25 years for Yellowstone’s grizzlies, although the count is nearer 20 if you include smaller wins. This was not a “one off” decision, but rather one built on decades of painstaking conservation work on multiple fronts—and not just in the realms of science and law, but also in the larger, more important arena of building public support for grizzly bears.
But we need to celebrate this pivotal moment of success. I offer a big shout-out to the brilliant attorneys who overturned the FWS’s 2017 delisting rule. Tim Preso and Josh Purtle at Earthjustice, Nick Arrivo at Humane Society, Matt Bishop and John Mellgren at Western Environmental Law Center, plus Tim Bechtold, Bob Aland, and Jeff Rasmussen, the last of whom represented numerous Tribes protesting the planned hunt as well as numerous insults to their sovereignty. These audacious attorneys showed their chops and ventured where lawyers typically hate to go—into the confusing wilderness of science. Indeed, this victory and its predecessors in the grizzly bear arena can be distinguished from those affecting many other endangered species by its heavy reliance on science.
I am not a mere bystander. The fraught arena of grizzly bear conservation has been the center of my life’s work for 35 years. Although I will save details of my personal journey for later, for good or bad I have outlived most of the players in the debate, both inside and outside the government. What I want to focus on here is the history and broader context of this legal victory. While I will emphasize the last few decades, ultimately, for deeper context, you need to go back as many as 120 years to the contributions of scientists and conservationists such as Aldo Leopold, Adolphe and Olaus Murie, and Frank and John Craighead, who were pioneers in challenging status quo wildlife management.
Then as now, the battle over our treatment of bears and wild nature is rooted in different world views. The regional and national public has, with mounting fervor, been rejecting the ethos of killing and domination that drove the so-called taming of the West. In fits and starts, the frontier mentality is giving way to a more compassionate and reverential view of nature. Emblematic of this, nearly all of the one million comments submitted by the public in response to a draft publication of the FWS’s delisting rule were overwhelmingly in support of increased—not diminished—protections and opposed to treating grizzly bears simply as something to mount on a wall or turn into a rug. In fact, the overwhelming majority of people in this country think that grizzlies deserve to live out their natural lives, raise their cubs in peace, and die of natural causes (which few now do) in one of the few ecosystems still big enough to support them.
But regressive worldviews die hard. Trophy hunters, energy executives and others eager to exploit our so-called ‘natural resources’ are not giving up. If you have any doubts, look at the crass political move made by Wyoming Congresswoman Liz Cheney to circumvent Judge Christensen’s ruling. Ms. Cheney introduced a bill, deceptively entitled the “Grizzly Bear State Management Act,” that, if passed, would delist Yellowstone grizzlies and prevent further judicial review. She dropped this proposed bill in the legislative hopper almost before the ink was dry on the judge’s order.
Note the word “management,” which is government code for hunting and killing. There is prestige in a trophy and money to be made in bear habitat. And greed, ego gratification, and violence are still drivers of wildlife management, especially among the states in the Northern Rockies. As many will remember, Liz’s father, former Vice President Dick Cheney, got us into the Iraq and Afghanistan wars by lying, and shot a friend and fellow hunter in the face with a shotgun. Dick’s legacy lives on through the daughter.
The question is: can grizzlies survive this epic battle of worldviews? With low reproductive rates and a need for vast areas of secure habitat, grizzlies are especially vulnerable to extinction. We succeeded in wiping out 97% of former numbers in less than a hundred years of European settlement. Forty years of recovery efforts under the ESA has increased total numbers by only several hundred bears, still just 3% of what we once had.
Runnin’ Down a Dream
Restoration of grizzly bear protections is a dream come true for me and comes in the nick of time, as the count of murdered bears shatters previous records. A trophy hunt would have compounded an already tragic situation.
I wrote earlier about the August courtroom drama that shaped Judge Christensen’s September decision. Here are some highlights of his ruling.
First, the FWS was called to task for its blatant disregard of law and science in excising Yellowstone’s bear population out from all the others simply to delist this isolated remnant. In failing to analyze the impacts of designating “distinct population segments” on remaining listed populations, the FWS willfully repeated a mistake they had previously made in delisting wolves inhabiting the Great Lakes. Two federal courts had rejected this earlier process of “balkanizing” populations. Christensen reaffirmed that “the Service’s piecemeal approach, isolating and delisting populations without questioning the effect on other populations, presents an irresolvable conflict with the ESA’s ‘policy of institutionalized caution.’”
The implications are serious for recovery of all wolf and grizzly bear populations in the contiguous US, especially given the importance of colonizers and dispersers from strong source populations such as exist in the Yellowstone and Northern Continental Divide (NCDE) ecosystems. But the FWS is poised to repeat its egregious errors by aggressively pushing plans to remove ESA protections for grizzlies in the NCDE, which are probably the most vital of all for recovering grizzlies in our most vulnerable grizzly bear populations.
Second, the judge found that possible changes in methods for estimating population size could result in state managers conniving to kill hundreds more bears, simply by using different but convenient statistical gimcrackery. The FWS can change methods, but it must ensure that management of mortality is prudent and precautionary.
Third, the judge found that the government had not adequately addressed the threat of genetic isolation. Astonishingly, Judge Christensen found that key scientific papers extensively referenced by the FWS did not support what they had claimed in their delisting rule as well as in court. He ruled that the FWS had “illogically cobble[d]” together studies to demonstrate that the population’s isolation was no longer a threat to the species’ continued survival.” Wow, a federal judge had really read the underlying scientific papers the FWS had relied on. That doesn’t happen every day.
It will take weeks for the dust to settle. Almost certainly the government will appeal to the 9th Circuit, just as it is appealing now to Congress for reprieve. Meanwhile bears are not getting a break even though trophy hunting has been forestalled. As of October 3rd, a total of 49 grizzlies have been killed this year in Greater Yellowstone, and big game hunting season is far from over. If you include the estimated unknown, unreported deaths, near 80 bears, representing 12% of the population, are dead. Virtually all experts not slaved to financial dependencies on the FWS believe grizzlies may have passed a tipping point.
A Look Back: Damn the Torpedoes
Ten years ago, when grizzlies were last saved by the Courts from delisting, Judge Donald Molloy summed up what has been the central problem for decades, concluding that the FWS had adopted a “full steam ahead, damn the torpedoes” approach to grizzly bear management. Aside from being the title of one of Tom Petty’s biggest hits, “Damn the Torpedoes” is a pretty good synopsis of how both state and federal managers have treated the Great Bear during the last 35 years.
It is true that the FWS willingly listed grizzlies as threatened under the ESA throughout the lower-48 states. But the 1970s were a much more benevolent political environment and bear numbers were plummeting towards what many feared was imminent extinction. At its core, the ESA represents not only a national commitment to saving imperiled species, but also a sea-shift in attitudes towards animals and nature. Not only did politicians nearly unanimously support passage of this landmark law, but they featured the crisis surrounding Yellowstone’s grizzlies and a desire to do something about it.
It should also be said that the FWS, along with the US Forest Service, National Park Service, and three states of Wyoming, Montana and Idaho, have done good things for bears. Of particular importance were a ban on trophy hunting, adoption of rules to prevent bears from becoming conditioned to human foods and subsequently killed, and a phase-out of domestic sheep (and some cattle) grazing in core habitat. Although federal prosecutions for poaching have been few, the fear of getting caught has almost certainly deterred some potential killers. Slowly, by the late 80s, the population stopped declining and began to bump up.
But it did not take long before the states began agitating to strip protections. The first memos I saw on that topic date back to 1992, from Wyoming. Their motto: damn the torpedoes and full steam ahead to strip government regulations, including grizzly protections. The FWS rolled over. Which begs the question, why?
There are probably two main reasons. First, our perverse systems of natural resources governance benefit a few powerful entities bent on exploiting our natural world at the expense of the majority who support conservation. States rely heavily on funds from hunting and fishing activities, and thus are beholden to the interests of hunters and fishermen. The Forest Service and Bureau of Land Management, which manage most lands in the Yellowstone ecosystem, have long catered to the timber, energy and ranching industries that they are supposed to regulate, primarily because of corrupting political and financial influences.
Second, federal and state managers are mostly good old boys who live in an echo chamber. If you don’t believe me, go to a meeting of the Interagency Grizzly Bear Committee. You will be confronted by a sea of mostly middle-aged white guys. Local, state and federal managers look interchangeable. During the breaks, you can hear anecdotes about hunting and fishing – “Got your elk yet? Yuk, yuk.” If you don’t hunt, you don’t count.
Managers share too the same stories about bears and delisting, which are so deeply embedded as to be subconscious. The first: delisting grizzlies and killing more of them will build local support. The logic is that if we don’t let more bears be killed, locals will take the law into their own hands and kill them anyway. Either way, more bears get killed. This is both irrational and contrary to all available evidence. But more importantly, the ESA is about keeping grizzly bears alive, not capitulating to thugs.
The second: only by removing the species’ protection can we ensure public support for the ESA. But having investigated this claim thoroughly, I can say that not a shred of evidence supports this wives’ tale. The current debate over the Act is ideological, not substantive. Congressmen who hate the ESA hate it regardless of the actual status of species or the real constraints imposed by species conservation.
A corollary to this argument is that we need success stories to build support for the Act. The response is that we HAVE success stories; the ESA has, in fact, been incredibly successful. About 90% of the species protected under the Act have not gone extinct. We celebrate many species, including bald eagles and peregrine falcons—and yes, the grizzly—because the ESA prevented their extirpation. But success doesn’t always mean delisting, nor should it if threats still abound, as is the case here.
These ‘Just So’ stories have long been justified with a veneer of legitimizing science. For example, in 1992 FWS officials began to make the case that 500 grizzlies were good enough for recovery, and that Yellowstone’s bears could be delisted. Not by coincidence, we happened to have around 500 bears in the population at the time this standard was adopted. But, researchers have since shown that thousands—not hundreds—of grizzlies are needed to ensure long term persistence, and that connecting now-isolated grizzly bear ecosystems can achieve that goal. That evidence has only gotten stronger over the years. Yet the FWS still clings to the 500-bear mantra that, insiders say, “was pulled out of their ass.”
The benchmark of 500 bears was thus codified in the 1993 Grizzly Bear Recovery Plan. Even if you believed the number was good enough, the plan did nothing to protect habitat. In what I call “Round One” in the litigation fight, conservation groups sued the FWS. Judge Paul Friedman overturned the Recovery Plan in 1995, agreeing that grizzlies cannot be recovered by relying only on population numbers, without considering habitat. Duh. But we are still fighting about the numbers and connectivity.
The victory bought ten years of continued protection, and the population continued to grow (albeit not as fast as government apologists advertise). In these years, the FWS enjoyed an unlimited checkbook that they used to pile up paper aimed at satisfying the judge and justifying delisting. Still, the agency never developed a habitat-based recovery plan that addressed the core problem.
Shortly after, another round of litigation, which I call “Round Two,” forced the US Forest Service to restore degraded habitat on National Forest lands. This involved a series of cases targeting different National Forests in the Greater Yellowstone and Northern Continental Divide Ecosystems. Grizzly bear researchers throughout North America had found that high densities of roads increased human-bear conflicts and facilitated poaching, yet the Forest Service resisted incorporating this body of science into their management, primarily because of inconvenience to the timber industry. Litigation helped the agency “see the light.”
Meanwhile, more and more people began speaking out for grizzly bears and their habitat, and against delisting. In numerous public processes conducted by state and federal agencies over a 12-year period, an ever-growing number of citizens consistently opposed delisting and supported stronger protections.
But the good old boy network had closed its ears. They shut their eyes too, failing to admit the collapse between about 2002 and 2012 of whitebark pine, which had provided one of the mainstays of the Yellowstone grizzly’s diet. Whitebark pine did not matter, the FWS argued, and even if it did, bears had alternative foods. In 2007, FWS delisted the Yellowstone population for the first time.
In “Round Three” of litigation, environmental attorneys succeeded in restoring protections for Yellowstone grizzlies in 2009. Here climate change took center stage. Warming winter temperatures had driven an unprecedented and deadly attack of mountain pine beetles on whitebark pine—trees that, without physical and chemical defenses, were sitting ducks. By 2009, over 70% of the whitebark pine in the ecosystem had been killed or heavily damaged, not 16% as the FWS claimed. Judge Donald Molloy was not amused. Neither was the 9th Circuit that upheld Molloy’s ruling in 2011.
During this time, I was part of an effort to assess the loss of whitebark in the Greater Yellowstone, a study led by Dr. Jesse Logan. The view from the air was shocking. Trees on nearly every high ridge were covered with red needles that flagged lethal beetle attacks. Never in my wildest dreams did I imagine this could have happened.
The FWS was undeterred, even by the troubling fact that, beginning in 2002, the population had stopped growing, and perhaps was declining. The cause? Bears were compensating for the loss of whitebark pine by turning more to meat and dying in ever-greater numbers in conflicts with livestock operators and big game hunters. Still, the FWS promised the states a repeat performance just days after the 9th Circuit Court upheld the ruling to relist.
For another ten years, FWS managers sprayed a fire hose of money on the problem. Among the many largely-contrived and mostly-inane results, the FWS concluded that bears are omnivores (really?) and that losing whitebark pine was not a big deal. None of this pseudo-science could withstand critical scrutiny nor mask an unfolding crisis.
Judge Christensen’s order to restore protections came just as grizzlies seem to be facing a freefall decline, not unlike the circumstances that led to the listing of Yellowstone bears in 1975. We should all be alarmed by the fact that almost as many bears have been killed in Wyoming since the August 30th ban on trophy hunting (20) as would have been killed in the hunt (22). Just as alarming are the unprecedented congressional attacks on the ESA itself.
I Won’t Back Down
This Tom Petty song, too often pilfered in today’s political campaigns, captures my world view: be smart, strategic, and sensitive, but don’t back down.
We need to redouble efforts here in Yellowstone as climate warming and human population growth take an increasing toll. More key foods such as army cutworm moths and some berry species will likely be driven into catastrophic decline by a worsening climate. More bears will be killed in conflicts, many avoidable.
What we do now for grizzlies and their wild country will shape what is possible tomorrow. We would not have won this latest round if we had not laid a strong foundation many years before. Moreover, our grandkids won’t have a chance to enjoy healthy bear populations in wild ecosystems if we stop fighting for them now.
More to the point, we need to tackle the proverbial Elephant in the Living Room, which is the problem of state wildlife management, one of the last bastions of sanctioned violence and the ethos of Manifest Destiny. There is a better way, through better coexistence practices, stronger law enforcement, more learning about what works, and incentives to serve the broader public interest, not a well-heeled minority. To get there, we will need litigation, especially as long as a “damn the torpedoes” philosophy drives wildlife managers.
At our home, we have been enjoying the presence of a family of beautiful black bears fattening up on apples from an old orchard. With a word and a glance from David, our dog has let them feed in peace. Maybe it is not too late for people to learn such a philosophy.