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Court filing says settlement, threat of suit pushed back some findings
The U.S. Fish and Wildlife Service plans to release its decisions on whether to delist grizzly bears from Endangered Species Act protections in two ecosystems in Montana by the end of next January – at the same time it decides whether to change or remove grizzlies’ protections in the lower 48 states, according to a declaration filed in federal court in Wyoming last week by the agency’s regional director.
The filing is the latest update in the saga of grizzly bear protections, as government officials and conservation groups keep a close eye on those decisions because they will have vast ramifications on whether states like Montana will be able to start managing grizzly populations at the state level or if the bears will continue to be protected from things like state-sanctioned hunting. Lee Newspapers first reported news of the filing on Wednesday morning.
Matt Hogan, the Mountain-Prairie Regional Director for the USFWS, filed an updated declaration in the State of Wyoming’s lawsuit against the U.S. Department of the Interior saying the 12-month review for grizzly bear protections in the Greater Yellowstone Ecosystem had initially been set to be completed and published by July 31 of this year.
But because of a settlement in a lawsuit filed by Montana-based Save the Yellowstone Grizzly against the Fish and Wildlife Service regarding lower-48 protections for grizzlies, the USFWS must issue a final rule by Jan. 31, 2026, that revises or removes the Endangered Species Act listing of grizzlies in the lower 48. Grizzly bears are currently listed as a threatened species in the lower 48.
Hogan’s filing says another factor in issuing the three decisions at the same time is the State of Montana on July 11 filed a 60-day notice of intent to sue the Fish and Wildlife Service for failing to issue a 12-month finding over whether to delist grizzlies in the Northern Continental Divide Ecosystem (NCDE) on time.
Hogan wrote in his declaration that the USFWS has already spent “significant time” preparing responses to Montana’s request for the NCDE and Wyoming’s request for the Greater Yellowstone Ecosystem, which the agency announced in February 2023 would undergo 12-month reviews, and has been preparing a draft for changes to lower 48 protections.
He said the three decisions “directly impact one another” because they all require analysis of possible distinct population segments of grizzlies in the lower 48.
“To ensure consistency between these decisions, the Service currently intends to finalize all three of these documents – the GYE 12-month finding, the NCDE 12-month finding, and the proposed rule revising or removing the entire ESA listing of grizzly bears in the lower-48 states – simultaneously,” Hogan wrote. “Therefore, the Service anticipates finalizing the GYE 12-month finding and submitting the finding to the Office of the Federal Register for publication no later than January 31, 2025.”
Conservation groups ‘disheartened’ by delay
The filing has Montana and other regional conservation groups concerned that the Fish and Wildlife Service could remove ESA protections from grizzlies either in the two ecosystems or in the lower 48 altogether, while those who want to see the bears delisted continue to urge the agency to take that route.
Joe Szuszwalak, a spokesperson for the Fish and Wildlife Service’s Mountain-Prairie Region, confirmed Hogan’s filing but did not say when specifically the findings might be issued ahead of next January.
“The declaration was filed to ensure consistency among several legal actions that directly impact each other and require the Service to review possible Distinct Population Segments of grizzly bears in the Lower 48,” he said in a written statement. “The U.S. Fish and Wildlife Service appreciates and values the critical work of other federal agencies, states, Tribes, and NGO partners in the efforts to recover the grizzly in the Lower 48.”
But regional conservation groups said Wednesday they are “deeply disappointed” and “disheartened” that the Fish and Wildlife Service is still considering delisting grizzlies anywhere.
“Although grizzly bears are slowly beginning to recover from a century of persecution and habitat loss, some politicians and government bureaucrats are hostile to grizzly bears and other carnivores, and they have passed laws and regulations that undermine carnivore conservation and demonstrate intent to reduce the grizzly population once USFWS oversight is removed,” a coalition of the Endangered Species Coalition, Sierra Club, Wyoming Wildlife Advocates, WildEarth Guardians, Western Watersheds Project, Friends of the Bitterroot, and Friends of the Clearwater said in a joint statement.
Since grizzly bears were listed under the Endangered Species Act in 1975, their population has grown from about 800 to around 1,900 in the western U.S., with most of them living in the Greater Yellowstone Ecosystem and Northern Continental Divide Ecosystem.
Conservationists said in statements and interviews Wednesday they see the decision to release all the findings at the same time as a threat to ongoing recovery efforts, as states like Montana, Wyoming and Idaho ready plans for if grizzlies are delisted in either of the two ecosystems or in the lower 48 that at some point would include a hunting season.
They say delisting the bears could lead to more dead sows with cubs that would reduce the gene pool and could threaten the interconnectivity of the populations – also seen as key to grizzly recovery efforts.
Mike Bader, of grizzly bear and forest advocacy group the Flathead-Bitterroot-Lolo Citizen Task Force, said in an interview that in the group’s lawsuit challenging wolf trapping in Montana over the incidental take of grizzly bears, Montana attorneys have said their biologists believe interconnectivity between populations in the two ecosystems was inevitable.
“Well, let’s just let that happen. I mean, it’s sad to me that after all the progress that’s been made, and people getting excited about bears being out in these different mountain ranges, that we would just say, ‘Well, you know, before we really get all the way there, we’re just going to quit,’” he said. “Like I say, declare victory and go home.”
A spokesperson for Montana Fish, Wildlife and Parks deferred a request for comment on the filing to the Governor’s Office, which provided the Daily Montanan a copy of the July 11 notice of intent to sue signed by FWP Director Dustin Temple and said Montana was leading the country in grizzly bear recovery.
“This most recent announcement from the U.S. Fish and Wildlife Service is just another example of our sluggish federal government dragging its feet,” spokesperson Kaitlin Price said in a statement. “We urge them to expedite its review, which is long overdue. Montana is well-prepared to manage this iconic American species.”
Montana threatens suit; senators offer thoughts
In the notice, Temple wrote that the Fish and Wildlife Service had 12 months to make a determination on delisting grizzlies in the Northern Continental Divide Ecosystem after the state filed its petition in December 2021 and still had not issued a decision even after the 12-month review that started in early 2023.
“If the Service does not make a final determination on the petition within sixty-days of receiving this letter, Montana will file suit to seek a court order compelling the Service to do so,” Temple wrote.
A day earlier, U.S. Sen. Steve Daines, R-Montana, pressed the deputy secretary for the Department of Interior on why the determination had not been released after 17 months. Deputy Secretary Shannon Estenoz said the population in the Greater Yellowstone Ecosystem and Northern Continental Divide ecosystem had recovered but the department was still working through the details of deciding whether to delist.
“I need to say for the record how grateful we are to both Montana and Wyoming for the stewardship of grizzly bears. And grizzly bears are doing well in those states because the states are taking good care of grizzly bears, and we know that,” Estenoz said. “And then I also want to say for the record that we want grizzlies to be recovered and delisted. I want to say that without reservation.”
She said that an animal being delisted from the ESA is a cause for celebration but told Daines the road used to get there is also important.
“It’s not just the listing decision, it’s the path you take that’s often what courts will attack,” she said. “So. We want to make sure we’ve got the path right.”
Daines said in a statement Wednesday he believes the “science is clear” that grizzlies have recovered in both ecosystems, warranting delisting.
“It’s long past time to return management of bears in these ecosystems back to Montana,” Daines said. “I’m urging FWS to follow the science and make a delisting decision for these two populations.”
A spokesperson for U.S. Sen. Jon Tester, D-Montana, did not say outright what decision he hopes the Fish and Wildlife Service comes to, only that it be rooted in science.
“Senator Tester believes that defending Montana’s outdoor heritage and wildlife is critically important to our way of life – and that starts with following the best available science,” the spokesperson said in a statement. “He will continue to hold the Biden Administration and the U.S. Fish and Wildlife Service accountable to make sure their finding on grizzly bears is rooted in the science and works for Montana.”
Editor’s note: This story has been updated to include comments from the governor’s spokesperson, Kaitlin Price.
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