The fate of grizzly bears in Washington State remains tenuous. To understand the situation more clearly, our team recently sat down with Andrea Zaccardi, Senior Attorney with the Center for Biological Diversity (“Center”), to talk a little legalese.
The reason: The Center has filed an “Intent to Sue” notice against the federal government for their abrupt termination of grizzly bear recovery efforts in the North Cascades on the grounds that this action violates the Endangered Species Act (“ESA”).
Andrea has been an environmental litigator for 15 years, and since 2014 her work at the Center has focused on protecting large carnivores. Across the West, where land is vast and tensions often run high when it comes to sharing the landscape with wild neighbors, you can well imagine that Andrea has her hands full fighting for wildlife in and out of the courts. And grizzly bears, a keystone species whose population has dwindled to less than 5% of historic numbers, is a species she keeps close tabs on. “The Center has been involved in grizzly conservation and recovery for several decades. It’s something we fight hard for, not just for the grizzlies, but also for the biological diversity of places like the North Cascades Ecosystem (“NCE”) where grizzlies can and should live,” says Andrea.
Some Grizzly Legalese
Bear Tracks explored the consequences of these halted recovery efforts in a recent article, but to frame our conversation in a legal context Andrea gave us a little refresher.
Remember, after grizzly bears were listed as a threatened species under the ESA, the US Fish & Wildlife Service (“FWS”) and National Park Service (“NPS”) identified six critical recovery zones across the bear’s historic range in the lower 48, including 10,000 square miles in north-central Washington anchored around North Cascades National Park. This was back in 1997.
With fewer than 10 grizzlies estimated inside the NCE at the time (this is still the case today), the agencies understood even then that the local population would need some help on the road to recovery. And so a scoping process was initiated under the National Environmental Policy Act (“NEPA”) to figure out what to do, and finally in January 2017 the agencies released a draft Environmental Impact Statement (“EIS”) for public comment that included a range of augmentation alternatives to restore a self-sustaining population of at least 200 bears in the NCE.
The agencies also analyzed a “no action alternative” and concluded that it would not achieve any restoration goals. Indeed, Andrea shared that “once again [federal agencies] acknowledged the biological consensus that grizzly bears could not recover on their own, and would need human intervention to reach reproductive recovery goals” including the relocation of bears from other population zones.
Grizzly Bear Recovery Mandated Under The ESA
This understanding, backed by science, is the linchpin of the Center’s allegations against the Department of Interior (“DOI”) for their termination of the North Cascades grizzly bear recovery plan, which also ended the NEPA and EIS scoping process.
In the official “Intent to Sue” notice filed on July 15th, the Center asserted that the FWS and NPS “violated the ESA by failing to conserve grizzly bears in the Northern Cascades Ecosystem, by failing to implement the grizzly bear recovery plan calling for grizzly bear recovery in the North Cascades, and by failing to complete consultation to consider the impacts of their actions in abandoning plans to take action to facilitate conservation and recovery of North Cascades grizzly bears.” This statement is full of legalese to be sure, but its essence is pretty clear. Restoring a viable and self-sustaining population of grizzlies is a legal – not to mention scientifically proven – prerogative under the ESA.
Importantly, written into the ESA is an “affirmative action mandate.” Andrea says this means that federal agencies are required to do the necessary work to ensure the conservation and survival of all species that are listed as threatened or endangered under the ESA. In this case, “doing the work” means bringing grizzly bears back to the wilds of the North Cascades.
And perhaps the bottom line is really Andrea’s assertion that “this abrupt reversal and change pretty much guarantees grizzlies will become locally extinct in the Pacific Northwest” if the agencies fail to act.
Grizzly Recovery Is Worth The Effort
Obviously large carnivore litigation takes a lot of time and energy, but Andrea believes that holding the agencies accountable to species protection is worth the effort. She is concerned that the FWS seems to be taking a piecemeal approach to grizzly bear restoration that is not what was envisioned under the ESA for recovery of a threatened or endangered species. “The FWS had already identified the North Cascades as a place necessary for the recovery of the species. But instead of working to do this, the agency has started spending a lot of time trying to remove protections for grizzly bears and other large wildlife on public lands.”
Andrea thinks much of this is due to pressures from Western states and the livestock industry to make it easier to manage wildlife locally. She also notes that the FWS is taking these shortcuts in other recovery zones such as the Greater Yellowstone Ecosystem. “The Yellowstone population is still genetically isolated and cannot be considered fully recovered until there is genetic exchange for grizzlies across all recovery zones. There’s also been a rise in mortality rates for grizzlies in Yellowstone in recent years. A large majority of this is due to human caused conflicts, including encounters with livestock and increased conflicts with hunters.” The FWS needs to do more to reduce these kinds of conflicts, says Andrea, before they ever consider lifting federal protections under the ESA.
For us newbies to legal procedure, Andrea patiently walked our team through the next steps in the litigative process. “The ESA requires that if you are going to sue, you have to put the agency on notice [60 days] and give them the opportunity to respond, either with why they think we are wrong or how they’ll resolve the claims we allege.” So come mid-September, if the Center deems the agency’s response to why they terminated grizzly bear recovery efforts in the North Cascades insufficient, the next step will be to file a claim and take it to Federal Court.
Bear Tracks, along with many Washingtonians and concerned Westerners, will be watching.