Montana moves grizzly bears to Yellowstone as legal fights swirl (2024)

In mathematics, a “three-body problem” is the virtually incalculable gravitational relationship of three planets orbiting and pulling on each other.

Grizzly bears face a similar quandary as a collection of court battles drags their legal status in different directions. And like the science-fiction novel and TV series of the same name, grizzlies’ three-body problem has potential to upend the world as they’ve known it for the past 50 years.

Last Friday, a federal district judge in Missoula heard accusations that the U.S. Wildlife Service was killing grizzlies for the benefit of farmers and ranchers without explaining how that might affect overall grizzly recovery. That’s just one of several developments spinning around the continental United States’ largest land predator.

Another lawsuit accuses Idaho wildlife managers of improperly allowing black-bear baiting in grizzly habitat, which could get grizzlies accidentally killed and/or habituated to human food (which often also leads to them getting killed). The states of Montana, Idaho and Wyoming have sued or threatened to sue FWS for failing to delist grizzlies and turn them over to state wildlife managers.

All those cases presume the grizzly bear remains a federally protected animal under the Endangered Species Act. On July 26, U.S. Fish and Wildlife Service Regional Director Matt Hogan announced his agency was not going to hit an anticipated July 30 deadline for an Endangered Species Act status review of grizzly bears. Instead, FWS intends to issue “the proposed rule revising or removing the entire ESA listing of grizzly bears in the lower-48 states” by Jan. 31, 2025.

Separately, grizzly advocates were threatening to sue Montana Fish, Wildlife & Parks over plans to truck captured grizzlies from the Northern Continental Divide Ecosystem of northwest Montana south to the Greater Yellowstone Ecosystem surrounding Yellowstone National Park, where the large but isolated bear population risks inbreeding. Then on Friday came the announcement from Montana Gov. Greg Gianforte and Wyoming Gov. Mark Gordon touting the truck translocation of two subadult grizzlies from Montana’s North Fork of the Flathead River region to northwestern Wyoming. Before it could be litigated, the policy was already in play.

Then there are ongoing efforts to reintroduce grizzly bears to landscapes where they used to roam, but have been wiped out or genetically isolated. Controversies roil around plans to return grizzlies to the wilderness lands along the Montana-Idaho border and to the North Cascades of Washington.

Spreading over all of this are several sets of state and federal grizzly policies proposing very different ways of managing bears. Those policies affect potential grizzly hunting seasons, construction of public land campgrounds and recreation facilities, logging and mining activity. The fate of all those depends on how the U.S. Fish and Wildlife Service revises or removes the grizzly bear’s Endangered Species Act status.

Grizzly history

An estimated 50,000 grizzly bears once roamed the Lower 48 states from Montana to Texas and west to the Pacific Coast. By 1975, when it became the eighth animal to receive Endangered Species Act protection, it numbered less than 600 south of Canada.

Becoming a federally threatened species also made grizzlies the focus of a sprawling recovery effort. The Interagency Grizzly Bear Committee oversaw conference rooms full of state and federal wildlife agency officials, along with affected local governments and Canadian observers. It designated six recovery areas where almost any development or industry activity had to be reviewed by the Fish and Wildlife Service for potential impact on grizzlies and their habitat needs. The law prohibited killing or harassing grizzlies except by official permit or self-defense (although Montana maintained a grizzly hunting season until 1991).

Over the decades, grizzly populations bloomed in two recovery areas— NCDE and GYE— with each harboring about 1,000 bears by 2023. However, The Cabinet-Yaak Ecosystem in far-northwest Montana and the Selkirk Ecosystem on the Idaho-Canada border both struggled to reach 50 grizzlies. And the Bitterroot and North Cascades ecosystems have fewer than five— and possibly no— resident bears.

Grizzlies in the two successful ecosystems have started to explore territory far beyond the recovery area boundaries. NCDE grizzlies have been spotted around the fringes of Missoula, deep in the mountains around the Bitterroot Valley and eastward across the north-central plains around the Missouri Breaks. GYE grizzlies have expanded their range, particularly into the Upper Green River cattle country of Wyoming and the Island Park region of Idaho. State and federal representatives of all three states have made legal demands for the Fish and Wildlife Service to declare grizzlies recovered and delist them from the Endangered Species Act.

Delisting would turn grizzlies over to state wildlife agency management. Montana, Idaho and Wyoming have all proposed resuming hunting of grizzlies, as well as liberalizing rules for killing bears suspected of threatening livestock or property. Federal consultation would no longer be required for logging, mining or other industrial activity in grizzly habitat.

Where can bears go?

The federal court hearing last Friday spotlighted one of the toughest conundrums of grizzly bear recovery: Where should they roam?

Wildearth Guardians v. APHIS-Wildlife Services looked at a fringe aspect of grizzly management— the U.S. Department of Agriculture’s predator control program. Wildlife Services responds to farmers and ranchers by killing or removing coyotes, foxes, wolves and other animals that damage crops or livestock. That list includes a few grizzly bears. Wildearth Guardians attorney Matthew Bishop argued Wildlife Services doesn’t analyze the impacts of the grizzlies it kills, in violation of the National Environmental Policy Act.

But the bigger issue, Bishop said, was that Wildlife Services doesn’t consider the potential harm of killing a grizzly outside of one of the six FWS-designated recovery zones. Such bears are crucial to the genetic connectivity of the species between zones. And in the case of under-populated recovery zones such as the Cabinet-Yaak Ecosystem in northwest Montana, the death of a single breeding-age female could mean the difference between a sustainable or sinking population.

U.S. Department of Justice attorney Krystal-Rose Perez countered that FWS grizzly recovery plans only consider the status of grizzlies inside the recovery zones and the nearby surrounding landscape.

“The grizzly, by all accounts measured, has recovered in the NCDE and GYE,” Perez told U.S. District Judge Dana Christensen. And while landscapes outside those ecosystems may provide good habitat for grizzlies, they aren’t essential for species recovery. Therefore, Wildlife Services doesn’t need to analyze the impacts of grizzly deaths occurring outside those ecosystems.

For grizzly protection advocates like Mike Bader of the Flathead-Bitterroot-Lolo Citizen Task Force, a bear’s freedom to roam outside those areas is the essential definition of recovery.

“Those bears are more important than a bear in the middle of the Bob Marshall Wilderness, because of their potential to reunify populations and reoccupy historic habitat,” Bader said. Ignoring the fate of those bears condemns the rest to imprisonment inside the mountainous recovery areas, which are both too small for the growing population and not the best habitat for an animal that evolved on the Great Plains.

Genetic diversity by truck

A much more abrupt grizzly bear movement was revealed on Friday, when Gianforte and Gordon announced the translocation of two grizzlies from Montana to Wyoming.

“We’re committed to sending a message that Montana is prepared to manage grizzly bears,” Gianforte said at a press conference on Monday. He described the translocation effort as evidence Montana was committing resources to maintain the genetic diversity of Yellowstone’s isolated grizzly population and its connectivity with the NCDE bears.

The translocation involved a subadult female and subadult male, both captured in the North Fork of the Flathead region west of Glacier National Park. Montana FWP bear biologist Cicily Costello said both were captured within two days after about two months of trying. They were chosen for translocation because as younger bears, they likely hadn’t established a home range in the Flathead and would be more likely to do so in their new Yellowstone-region habitat.

Neither grizzly had history of conflict with humans. The male was released south of Yellowstone Lake while the female was let go in the Blackrock drainage 35 miles northwest of Dubois, Wyoming.

Both states had supported an FWS decision to delist grizzlies in the Greater Yellowstone Ecosystem, but that was vacated by a federal court ruling in 2019. Part of that ruling in Crow Indian Tribe v. United States faulted FWS for not ensuring the long-term genetic diversity of Greater Yellowstone grizzlies. The governors stated their translocation effort “addresses concerns cited by the court and demonstrates the commitment of Wyoming and Montana to ensure that diversity remains.”

Gianforte and Gordon also re-upped their calls on FWS to completely delist grizzly bears. Gianforte’s administration on July 11 sent the Interior Department a 60-day notice of intent to sue for failure to respond to Montana’s petition to delist grizzlies from the ESA. Montana had lodged that petition on Dec. 17, 2021, and claimed it was due a response within 12 months. The governor’s office called that “just another example of our sluggish federal government dragging its feet.”

Wyoming’s Gordon was equally frustrated. In its legal response to Hogan’s new deadline announcement, state attorneys wrote, “Apparently the Federal Respondents’ willingness to flout the law knows no bounds," and called Hogan’s January 2025 extension “a move that reeks of arrogance and entitlement.”

Hogan’s justification for the new date was the complicated legal overlaps of state requests to delist the bears and the service’s own analysis of grizzlies’ future. A big part of that revolves around which grizzlies would be federal or state wards.

Since 1975, the grizzly bear’s Endangered Species Act protection applies to all grizzlies in the Lower 48 states— what FWS refers to as a Distinct Population Segment, or DPS. Two past efforts to delist grizzlies in the Greater Yellowstone Ecosystem required the service to carve out a separate DPS for those Yellowstone bears. Montana officials have also demanded a separate DPS for their Northern Continental Divide Ecosystem grizzly population.

The 2019 Crow Tribe ruling pointed out many of the problems with that strategy. In addition to the genetic diversity problem, the ruling faulted FWS for failing to show how the four struggling ecosystems (Cabinet-Yaak, Bitterroot, Selkirk and North Cascades) would function if the big populations in the Northern Continental Divide and Greater Yellowstone were under state management.

What about new bears?

For example, if a grizzly moved between a strong ecosystem and a struggling one, would it carry its state or federal management status with it? And what would be the status of grizzlies that settled in between any of those old recovery zones?

That gets especially complicated with the Bitterroot and North Cascades ecosystems, currently undergoing efforts to add grizzlies in their essentially bear-free landscapes. The Bitterroot Ecosystem had an active plan to transplant an experimental population of grizzlies (without ESA protections) that got stalled in 2000. Last year, U.S. District Judge Donald Molloy ruled FWS was still obligated to complete the plan. However, Molloy noted that in the intervening 22 years, wild grizzly bears had started exploring the Bitterroots and may have become resident. That meant the old plan to move in experimental, ESA-free grizzlies needed to be rewritten.

Also last year, FWS released a draft plan to restock the North Cascades with 25 transplanted grizzlies over the next 10 years. The decision drew both acclaim from grizzly advocates and outrage from grizzly opponents.

In his first stint as Montana congressman, Rep. Ryan Zinke attempted to delist grizzlies through legislation before becoming Secretary of Interior under President Donald Trump in 2017. At Interior, he oversaw FWS delisting of the Greater Yellowstone grizzly population, but had that rule overturned in federal court in 2018. Since returning to the House of Representatives in 2022, he has twice more tried to delist grizzlies through Interior appropriations bills but had the measures stripped out in the Senate.

“The Biden-Harris Administration has already blown past the deadline required to submit a recommendation because they know the science is not on their side,” Zinke wrote in a statement last Thursday. “The only good thing about delaying a decision on delisting the grizzly bear is the hope that the new Trump administration is able to announce what Biden-Harris and their radical environmentalist puppet masters refuse to: the grizzly bear is a conservation success story and should be delisted. I will continue to fight to delist the grizzly because it’s the right move for Montana and for conservation.”

As Interior Secretary, Zinke also halted work on reintroducing grizzlies to the North Cascades in 2017 before restarting it four months late. Zinke resigned his Cabinet post later that year. His replacement, David Bernhardt halted the reintroduction again in 2020. The Center for Biological Diversity successfully sued to get the plan back on track.