Environmental groups and tribal governments are asking a federal judge to rule immediately in their favor and invalidate the federal government’s decision to lift protections for the Yellowstone grizzly bears.
The various groups, represented by Earthjustice, requested summary judgment from the U.S. District Court in Missoula in their lawsuit over the removal of Endangered Species Act protections from the Yellowstone grizzly bears. The request, filed Monday, came on the last day of a public comment period on how an appeals court decision regarding the delisting of wolves in the Great Lakes should affect the Yellowstone grizzlies’ final delisting rule.
The U.S. Fish and Wildlife Service opened that comment period months after the bears were delisted, a move opponents say was meant to cover up legal flaws in the rule removing protections for the bears.
In a press release announcing the request, the groups argue that the comment period is “evidence the government did not complete its homework” before delisting the bears.
“The time for taking public comment and considering all issues surrounding the removal of federal protections for Yellowstone grizzlies was before those protections were removed, not after the decision was finalized,” said Tim Preso, an Earthjustice attorney, in the release.
Earthjustice filed the request on behalf of the Sierra Club, the Center for Biological Diversity, the National Parks Conservation Association and the Northern Cheyenne Tribe, plaintiffs in one of five lawsuits over the delisting that have been combined by a judge in Missoula.
A USFWS spokesman declined to comment on the request.
The Yellowstone grizzly bears had been listed as “threatened” under the Endangered Species Act for more than 40 years when the protections were lifted in summer 2017. Removing the protections ceded management responsibility to the states of Idaho, Wyoming and Montana and opened the door for potential hunts. None have been planned.
Shortly after the protections were removed, environmental groups and tribal governments sued over the decision. In the lawsuits, delisting opponents raised concerns over the population’s status as a distinct population segment, which is the issue raised in the request for summary judgement.
USFWS considers the Yellowstone bears a distinct population segment from other grizzly populations in the lower 48, which allows them to delist the Yellowstone bears while leaving the other populations — like the bears in and around Glacier National Park — on the threatened list.
USFWS used the same rationale in a 2011 attempt to delist the Western Great Lakes gray wolf. But a Humane Society lawsuit has blocked that delisting.
This fall, the U.S. Circuit Court of Appeals in Washington, D.C., sided with the Humane Society, saying the agency failed to consider the impact delisting that subset of wolves would have on the legal status of wolves elsewhere.
In December, USFWS announced a 30-day public comment period on how that decision affects the Yellowstone grizzly delisting, which remains in effect. Delisting opponents have described the comment period as an attempt to cover up legal flaws in the rule. David Mattson, a scientist and prominent grizzly advocate, wrote on the Grizzly Times blog Sunday that the comment period “was a cynical attempt to retrospectively develop a paper trail to remedy a patently deficient and overly hasty decision process” and flush out arguments delisting opponents might make in court.
The comment period closed Monday night. As of Monday afternoon, more than 2,700 comments had been received through the federal government’s online portal.
The agency plans to review the comments and issue a report detailing its conclusions by the end of March.
