The fate of the Yellowstone grizzly bear landed in the 9th Circuit Court of Appeals earlier this month following nearly two years of legal squabbling over the population's status under the Endangered Species Act (ESA). Appellate judges are now considering an appeal of U.S. District Judge Donald Molloy's September 2009 decision in Missoula to return the bears to the list of endangered species.
But while federal officials, state agencies, environmental groups and biologists continue to dispute the answer to a seemingly simple question—whether or not the bears should be delisted—many agree the debate has much broader implications not just for the Yellowstone population but other grizzlies in the northwest, and possibly for the ESA itself.
"If you can never get across the finish line because of legal interference in the recovery process, then our ability to recover not only grizzly bears but many other species listed under the ESA will drop off," says Chris Servheen, a Missoula-based wildlife biologist and grizzly bear recovery coordinator for the U.S. Fish and Wildlife Service. If [Molloy's] opinion stands, the ESA is unworkable."
From a biological standpoint, there's no disagreement that Yellowstone's grizzlies have bounced back from the brink. The population has tripled since the bears were first listed in the mid-1970s and now totals approximately 600, says Yellowstone National Park bear management biologist Kerry Gunther. Their geographic distribution has increased by 50 percent. The statistics were compelling enough to convince federal officials to delist the bears in 2007, placing management in the hands of state and local governments.
Opposition to the delisting came with the release of a long-term conservation strategy for Yellowstone from the Interagency Grizzly Bear Committee (IGBC). Several environmental groups including the Greater Yellowstone Coalition alleged the document failed to, among other things, consider declines in the number of white bark pine—a staple food source for grizzlies—in the Yellowstone ecosystem, and pressed Molloy to relist the bears.
"Ultimately, what we're trying to avoid is the possibility of another population crash similar to what we had in the '60s and '70s, when food sources were abruptly eliminated," says Greater Yellowstone Coalition spokesperson Jeff Welsh.
The agencies behind the conservation strategy counter that the plan actually provides more protections for the grizzlies than the ESA. It would halt increases in road density, grazing allotments and site development on thousands of square miles of prime grizzly habitat. Servheen says the plan, which he helped draft, will improve funding for bear conservation and increase management efficiency by allowing local officials to handle conflicts.
"This is the best post-delisting management plan for any species ever created," Servheen says. "This commits the agencies to spend $3.4 million a year managing and monitoring the bear after recovery and delisting. That's a million dollars more than when it was listed, so it's a very gold-plated system."
That plan also serves as a template for an analogous conservation strategy for grizzlies in the Northern Continental Divide Ecosystem (NCDE) around Glacier National Park. Servheen says the population there has already reached its benchmark for delisting. DNA analysis of samples collected in the field indicated a total of 765 grizzlies in 2004; based on a population gain of 3 percent per year, officials estimate the NCDE is now home to some 900 bears. Once the conservation strategy is complete—something Servheen says could happen as early as next year—Montana will contain yet another grizzly population poised for delisting.
If the legal debate over Yellowstone grizzlies continues, however, Servheen believes it will undermine future attempts to delist other populations and taint agency and public perception of the worth of grizzly conservation.
"Getting across the finish line in Yellowstone and getting that population recovered would have direct ramifications on the recovery of the Cabinet-Yaak population and the Selkirks in north Idaho, because those people could then say it's worth the investment," Servheen says. "The future of grizzly bears everywhere is dependent on achieving success where success has been achieved."
Opposition to delisting even threatens to erode the decades-long cooperative spirit among the international, federal, state and tribal entities involved in the IGBC. The Yellowstone conservation strategy took 25 years of not just biological research but of careful political negotiating, says IGBC spokesman and Idaho Fish and Game conservation educator Gregg Losinski. He hopes people begin to realize "how damaging this litigation has been to this cooperative effort."
"Very few of those organizations have recovery of the bear as their number one priority," Losinski says. "They have a totally different line of business, and they've been willing over the past 25-plus years to bend where possible, to commit resources where possible and to bring back the bear."
Servheen maintains that beyond the future of the Yellowstone grizzly, the greatest setback a failure in the 9th Circuit will bring is in undermining the ESA and catering to its critics.
"The grizzly bear in Yellowstone is one of the greatest success stories under the ESA," Servheen says. "But if these groups are successful in obstructing our recovery in Yellowstone, we won't be able to say the ESA works. All those people that don't like the ESA and are only looking for failures will have one more thing to point to."