My favorite week of the year is “Fat Bear Week,” an annual competition organized by Katmai National Park in Alaska to crown the bear that managed to pack on the most weight over the summer. Bears are fascinating animals to me, which might also have to do with the fact that I am from Germany, where there are no more wild bears. (Actually, the first wild bear to wander into Germany in over 170 years, dubbed Bruno the “problem bear,” had to be trapped by a team of Finnish bear hunters.) Each year, people from all over the world join in the fun to choose the fattest bear. In 2020, they selected bear 747 as the winner, who came in with an impressive volume of 22.6 cubic feet! The competition is a fun event but is also intended “to show off the healthy ecosystem here [in Alaska] and for these animals, fat bears = healthy bears.”
The bears found in Katmai National Park are coastal brown bears. The coastal brown bears are the same species as the inland grizzly bears of Alaska, Canada, and the NW United States (ursus arctos horribilis). However, unlike the coastal brown bears, grizzly bears in the lower 48 states are listed as a threatened species under the Endangered Species Act (ESA). This blog post will give a broad overview of ESA in general and the status of grizzly bears under ESA.
Overview of the Endangered Species Act (ESA)
ESA is “a key legislation for both domestic and international conservation” and helps the United States meet many of its international responsibilities under treaties and conventions, such as the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Hemisphere Convention). It is administered by the U.S. Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS). According to section 2 of ESA,
[t]he purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.
ESA differentiates between endangered and threatened species. A species is endangered, when it is “in danger of extinction throughout all or a significant portion of its range.” (ESA, §3(6).) Threatened species, on the other hand, are “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” (Id. §3(20).) Species are listed as endangered or threatened on the basis of their biological status and threats to their existence, taking into account the following factors:
- the present or threatened destruction, modification, or curtailment of their habitat or range;
- overutilization for commercial, recreational, scientific, or educational purposes;
- disease or predation;
- the inadequacy of existing regulatory mechanisms; or
- other natural or manmade factors affecting their continued existence. (Id. §4.)
Species listed under ESA may not be “taken” without a permit. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” (Id. §3(19).) For the conservation and survival of endangered and threatened species listed under ESA, recovery plans are developed and implemented. The ultimate goal is the delisting of the species. (Id. §4(f).)
Grizzly Bears and ESA
In July 1975, the U.S. Fish and Wildlife Service first listed the grizzly bear as a threatened species in the lower 48 states under ESA (40 FR 31734). It is illegal to harm, harass, or kill grizzly bears, except in cases of self defense or the defense of others (50 CFR § 17.40). A grizzly bear recovery plan was developed with the goal to delist the species at some point. The recovery plan identified distinct recovery zones for the grizzly bear. There are six recovery ecosystems for grizzly bears today:
- the Greater Yellowstone Ecosystem,
- the Northern Continental Divide Ecosystem,
- the Cabinet-Yaak Ecosystem,
- the Selkirk Ecosystem,
- the North Cascades Ecosystem, and
- the Bitterroot Ecosystem.
On March 29, 2007, the FWS published a final rule designating the Greater Yellowstone Ecosystem (GYE) population as a distinct population segment (DPS) and removing grizzly bears in the GYE from the ESA list (72 FR 14866). However, this rule was vacated by the District Court of Montana on September 21, 2009 (672 F.Supp.2d 1105 (D. Mont. 2009). In 2016, the FWS again proposed to remove the GYE population of grizzly bears from the list of endangered and threatened species under ESA. It stated that “[t]he Service has determined that the GYE grizzly bear population has increased in size and more than tripled its occupied range since being listed as threatened under the Act in 1975 and that threats to the population are sufficiently minimized.” On June 30, 2017, the FWS published its final rule and removed that DPS from the list. This final rule was challenged by six different lawsuits in federal courts in Missoula, Montana and Chicago, Illinois. The Chicago lawsuit was transferred to Missoula, and the lawsuits were consolidated. In 2018, the U.S. District Court for the District of Montana vacated the final delisting rule and restored Endangered Species Act status to the GYE grizzly bear. It held that the FWS failed to consider how reduced protections in the GYE would impact the other grizzly populations and that the FWS’s application of the ESA threats analysis was arbitrary and capricious. It stated that
The Court is aware of the high level of public interest in this case, as well as the strong feelings the grizzly bear evokes in individuals, from ranchers and biggame hunters to conservationists and animal rights activists. The policy implications of the Greater Yellowstone grizzly delisting are significant, but they cannot affect the Court’s disposition. Although this Order may have impacts throughout grizzly country and beyond, this case is not about the ethics of hunting, and it is not about solving human- or livestock-grizzly conflicts as a practical or philosophical matter. These issues are not before the Court. This Court’s review, constrained by the Constitution and the laws enacted by Congress, is limited to answering a yes-or-no question: Did the United States Fish and Wildlife Service (hereinafter “Service”) exceed its legal authority when it delisted the Greater Yellowstone grizzly bear?
On July 30, 2019, in line with the Montana court decision, the GYE grizzly bears were put back on the list.