Louisa Wilcox checking in with her NRDC blog.....................She makes a logical case that just becasue Grizzly numbers in Yellowstone have increased to about 600 bears, it is not population numbers but future forecasts of declining habitat and foodstuffs that should be factored in to the decision about when to delist the bears off the Endangered Species List..............Whitebark pine decline and Cutthroat Trout demise in and around Yellowstone are wakeup calls to the fact that key Bear food sources are anything but certain as we look ahead to the next 50 years..........Might the Big Bears already be slowing down and having less reproductive success due to food declines? For those of you who grew up in the 60's and 70's who remember the LOST IN SPACE TV SERIES......."WARNING WILL ROBINSON, WARNING!"

Yellowstone Grizzly Bear Numbers: How Relevant Are They?

The question of the relevance of Yellowstone grizzly numbers and trends came into question during the 9th Circuit Court of Appeals hearing in March on the appeal of the District Court ruling that returned Yellowstone grizzly bears to the list of endangered species in 2009.

Wrapping up his oral argument, the federal attorney said: "let me address the extra record materials relied on by the Coalition. First of all, anything that has happened after March of 2007 isn't relevant to this case. This court's job is to assess whether the Service [U.S. Fish and Wildlife Service] made an arbitrary and capricious determination based on the record that was before the agency at the time the agency made this decision. So anything that happens after March 2007 is not relevant to this case."
Honorable Susan Graber: "So do you agree that the last line of your reply brief is not relevant also"?
Federal attorney: "That's right. We only included that data to rebut the notion that mortality has skyrocketed and it hasn't--" Honorable Sid Thomas: "That's probably not the best way to end. Thank you counsel."

To understand the importance of this exchange, you need a little background. The Greater Yellowstone Coalition's attorney, Douglas Honnold of Earthjustice, presented information on the serious threats to bears posed by whitebark pine loss, which had increased in severity since the 2007 delisting decision. He also described the excessive levels of grizzly bear mortalities that occurred in 2008 and 2010.

During the oral argument, the government attorney said that this information was irrelevant, as these events occurred after 2007 when the Fish and Wildlife Service issued its delisting rule, and when the record was considered "complete" by the agency.

To recap, Judge Graber then asked about whether or not the last sentence of the federal government's reply brief was irrelevant. Here are the last two sentences of that reply brief to provide needed context for her question: "If this court considers extra record materials (which it should not) it should also consider the data showing the Yellowstone area grizzly bear population has continued to increase at about 4-8% per year, each year, since the 2006 delisting decision, including in 2008, the year to which the Coalition refers. The current grizzly bear population is estimated to be about 600 animals."
At the end of oral argument, the federal attorney agreed with the Judge that this last statement wasn't relevant.

What is amazing about this admission is that it gets to a main pillar of the government's case for delisting—the numbers and trends of grizzly bears. If these numbers are irrelevant, as the federal government conceded they were—and habitat is threatened and regulatory mechanisms are inadequate, then how can Fish and Wildlife Service justify delisting?

Since 2007, according to Interagency Grizzly Bear annual reports, the growth rate has slowed considerably—and even a decrease in the population is possible, within the wide range of uncertainty that is inherent in the current methods used to count bears. This may become an issue of great relevance to all those concerned about the future of the grizzly bear in one of its last strongholds in the lower-48 states.

If we had reached some kind of tipping point—perhaps at the very time when grizzlies were delisted—and grizzly bear numbers are now decreasing, then endangered species protections are justified more than ever. And instead of continuing to deny the major changes that have altered bear habitat for the foreseeable future, we should redouble efforts to reduce human-caused mortality and to protect their habitat.

The federal attorney's concession may not have been the "best way to end" the government's day in court, but it did reveal something important about the federal government's approach in this case to bear numbers: they are relevant when useful to argue for delisting, and irrelevant when they are not. 

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