Commissioners consider intervening in lawsuit
The Lincoln County Board of Commissioners is considering entering into a lawsuit between the Alliance for the Wild Rockies and the United States Fish and Wildlife Service regarding the protected status of the Cabinet-Yaak Ecosystem (CYE) grizzly bears.
The commissioners met by phone Wednesday with their counterparts in two Idaho counties, Boundary County and Bonner County, to discuss the potential for the three counties to jointly file as defendant-intervenors in the case, which seeks to force the Fish and Wildlife Service to reconsider its administrative decision to declare the grizzly bear population as “threatened.” The listing was a downgrade from the previous listing of “warranted but excluded” from an endangered listing.
The plaintiff in the case, Alliance for the Wild Rockies, argued the change in status was not properly executed within the confines of the Endangered Species Act, and was done primarily as a response to a suit the group had filed previously seeking to elevate the bears to endangered status. After the agency downgraded the bears from warranted but excluded to threatened, United States District Judge Donald Molloy ruled the suit filed by the Alliance to be moot, as the bears were no longer listed as warranted, but excluded.
The new suit was filed Feb. 9, 2016 in federal court in Missoula.
“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 suit comes after the Alliance filed a petition with the agency seeking to have the CYE grizzly subpopulation upgraded to endangered status. A competing petition was filed by Lincoln County, asking the agency to remove the bears from threatened status. The agency denied both petitions, stating the bears were meeting some of the recovery criteria, but not all. Such recovery, the agency said, demonstrated existing protections were working but were not yet completely successful in promoting the desired recovery.
“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.”
Commissioner Mark Peck of Lincoln County expressed his concern that a victory in the litigation for the Alliance could be a first step in creating additional critical habitat protections, which would essentially lock up land within the county and could preclude any type of economic activity on those lands, especially mining and timber harvesting. Boundary County Commissioner Dan Dinning said he shared a similar concern, as a previous such suit resulted in an entire recovery zone being labeled as critical habitat and shut down all activity in the area. He also expressed concern that if such a move were successful in the Cabinet-Yaak ecosystem, the next logical step would be the Selkirk area, which would significantly impact northern Idaho.
The members of the three county commissions decided they would meet face-to-face and set a goal to do so by some time next week. Lincoln County Commissioner Mark Peck accepted the task to coordinate the meeting, which will likely be held in Bonners Ferry, Idaho, due to its central location.
Attorney R. Allan Payne, who was retained by the Lincoln County Board of Commissioners to prepare the county’s petition, told the commissioners he couldn’t provide a solid estimate of the potential cost of entering into the litigation, although he tossed out a figure of between $25,000 and $50,000, but added the estimate “could be off by 100 percent.”