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Ninth Circuit Hears Arguments Over Yellowstone Grizzly Bear Delisting

Grizzly bear in Yellowstone National Park.

The U.S. Ninth Circuit Court of Appeals Tuesday heard arguments over whether Endangered Species Act protections should be removed for Yellowstone-area grizzly bears.

Last fall, a federal judge in Missoula overturned the U.S. government’s decision to delist the roughly 700 grizzly bears that live in and around Yellowstone National Park. That decision put a stop to the first grizzly hunts in decades. It also derailed U.S. Fish and Wildlife Service plans to delist the even larger population of bears in and around Glacier National Park.

The federal government, along with the states of Montana, Wyoming, and Idaho, appealed that decision.

Joan Pepin, an attorney representing the U.S. Fish and Wildlife Service, says grizzlies have recovered in the Yellowstone area, and this won’t be their last day in court.

"I can almost guarantee there will be opportunity for additional judicial review in the future," Pepin said.

The federal government agreed to go back to the drawing board on a delisting rule for Yellowstone bears. Their appeal was focused only on a narrow part of the lower court’s decision.

"If we thought that just doing what we’d already done was sufficient, we’d be appealing that issue to you now," Pepin said.

But that created confusion among the three-judge panel. Judge Andrew Hurwitz wondered, if everybody agrees on the major points, then:

"What’re we fighting about here?" Hurwitz asked.

This court fight is the latest step in nearly a decade and a half of attempts at delisting Yellowstone-area grizzlies. The prolonged legal battles fuel frustration on all sides of the delisting debate.

At issue here is the extent to which the government needs to analyze the impact delisting will have on the remaining populations of grizzly bears in the lower 48 - there are five other federally designated ecosystems, with only one additional sizable grizzly population.

Montana, Wyoming, and Idaho, went much further than the government in their appeals. If the Ninth Circuit decides on the case, they might also resolve lingering issues over how grizzly populations are counted, how they connect with one another, and the genetic health of the bears. But Andrea Zaccardi, senior attorney at the Center for Biological Diversity, says that decision could be months, or even years, in coming.

"We are hopeful that either the district court ruling will be affirmed or that the court will provide some direction as to what the Fish and Wildlife Service needs to do should they decide to delist Yellowstone grizzly bears again in the future," Zaccardi said.

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