County to intervene in grizzly suit

The Lincoln County Board of Commissioners last week voted unanimously to intervene in a lawsuit between Alliance for the Wild Rockies and the United States Fish and Wildlife Service about the status of the Cabinet-Yaak Ecosystem grizzly bear.

The commissioners joined with the commissions of Bonner and Boundary counties in Idaho to file as defendant-intervenors in support of the federal agency’s decision to not grant endangered status to the grizzly bears. The Sanders County commission has also been recently approached about partnering in the suit, but has not yet agreed.

“So far we have Lincoln, Boundary (Idaho) and Bonner (Idaho) that have passed resolutions,” said Commissioner Greg Larson. “We just recently asked Sanders also which was an oversight on our part and they are considering it today.  They have not been in on the earlier discussions so I will see if they have need for more information. It was an oversight on my part that we left them out early on so I sure hope they will join us.”

The Alliance for the Wild Rockies filed a suit in federal district court challenging the decision of the United States Fish and Wildlife Service to not upgrade the status of the Cabinet-Yaak Ecosystem (CYE) grizzly bears from threatened to endangered. The suit alleges the agency failed to meet its legal obligations in making the decision to leave the bears’ status as threatened, instead of upgrading it to endangered and triggering automatic critical habitat protection measures under the Endangered Species Act.

“Plaintiff attests that the agency’s decision and/or failure to act is arbitrary and capricious, an abuse of discretion, and/or otherwise not in accordance with law or procedures required by law,” attorney Rebecca Smith wrote in the complaint.

The group claims the agency determined in 1993 that the change in status from threatened to endangered was warranted, but that such a rule was warranted but precluded. The decision was challenged in federal court, which remanded the decision back to the agency in 1995. The agency issued another warranted but precluded determination in 1998. The listing status of the bears has remained at threatened.

In the suit, the Alliance claims that only 42 grizzly bears exist within the Cabinet-Yaak Ecosystem. Further, the plaintiff alleges 100 bears is the minimum population necessary for recovery of the CYE grizzly bears.

“When the DNA evidence is added to all other evidence of known Cabinet-Yaak grizzly bears, the definite estimate for the study period is 42 bears,” Smith wrote in the complaint. “...The minimum population necessary for recovery of the Cabinet-Yaak grizzly bear population is 100 bears. The current population of less than 50 Cabinet-Yaak grizzly bears demonstrates that the population is still not viable or close to recovery after decades of federal management.”

The plaintiff also cites a 2014 United States Fish and Wildlife Service report, which they claim demonstrates the Cabinet-Yaak grizzlies are failing to meet all established population recovery targets, including females with cubs, human-caused mortality, human-caused female bear mortality and distribution of females with young.

The agency has not, as of press time Thursday, filed a response to the Alliance’s suit, but in a Dec. 31, 2015, ruling in which the agency declined to upgrade the listing status, the agency called the Alliance’s assertions into question.

“The petitioner summarizes the results of the USGS estimate of the Cabinet-Yaak grizzly bear population size in their statement that they ‘found DNA evidence of only 38 individual Cabinet-Yaak grizzly bears,’” the petition response read. “In addition the petitioner extrapolates that there is “a total population of 42 bears” and that this is a ‘definite estimate for the study period.’ The study actually identified 42 individual bears, 38 through DNA detection and 4 through other methods (Kendall et al., In prep). The average resident population was estimated to be 45 individuals and the super population, the number of full- and part-time grizzly bears, to be 49 individuals (Kendall et al., In prep). The petitioner compares the minimum number of bears to the recovery criterion of 100 individuals to demonstrate that the ‘population is still not viable or close to recovery after decades of federal management.’ It is because the Service recognizes that the population goal set out in the recovery plan has not been met that we maintain a threatened status for the population. In sum, we find that the information provided in the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted based on small population dynamics.”

Lincoln County Commissioner Mark Peck said he would like to see the county join the agency in the lawsuit, either by filing an amicus (friend of the court) brief on behalf of the U.S. Fish and Wildlife Service or by taking a more active role as a defendant-intervenor in the case. The commissioners filed a petition with the service in July 2015, seeking to have the Cabinet-Yaak grizzlies completely delisted. The commissioners’ petition was denied at the same time as the upgrade petition filed by the Alliance.

The petition, Peck said, was intended to ensure Lincoln County had legal standing in any matters related to the grizzly bears and habitat issues within Lincoln County. The decision to intervene, he said, is part of a long-term plan for Lincoln County to assert control over its own destiny.

“This is another step toward us deciding our own fate,” he said. “If we don’t take action, we risk being told what we can and cannot do in our own county. If we’re not involved in the suit, we risk the Fish and Wildlife Service entering into negotiations on their own with AWR and us not having any say in how this is handled.”

He also commended Commissioner Larson’s efforts on the project.

“Greg has done a great job trying to put all of this together with the other counties,” he said. “He’s really put a lot of work into this.”