Judge mandates grizzly delisting decision within 45 days
Federal Judge Alan B. Johnson sided with the state of Wyoming during the first week of December in determining if the U.S. Fish and Wildlife Service (USFWS) had blown by its legal deadline to issue a decision on removing grizzly bears in the Greater Yellowstone Ecosystem (GYE) from the list of federally-protected species.
Johnson’s court order requires the federal agency to make its final determination within 45 days.
In a press release, Gov. Mark Gordon responds, “This is a step towards returning rightful management of the GYE grizzly bear population back to the states. It should not take a judge’s order for USFWS to meet deadlines, and I look forward to the process finally continuing.”
“We have known for years Wyoming’s grizzly bears have exceeded population goals, and the state has met recovery criteria time and time again,” Gordon continues.
The final decision
In his 25-page order granting the state of Wyoming’s request for a final decision on delisting GYE grizzlies, Johnson also rebukes the state of Wyoming for shortcomings in its legal filings – through its failure to adequately address the state’s standing to bring the legal case – and for its “pointless musings” which have no bearing on the case.
Johnson writes, “Instead of taking these basic steps, the state here inexplicably chose to spend multiple pages of its opening brief fantasizing about customized relief like demanding public apologies from federal officials – a remedy it never even requested. The court requests the state refrain from including such pointless musings in the future and be more purposeful about use of all parties’ and the public’s resources.”
The Wyoming Attorney General’s Office represents the state of Wyoming in these legal proceedings.
Johnson also agrees federal regulatory action interferes with the state’s sovereign interest in regulating wildlife and natural resources creates a sufficient injury-in-fact to prove the state’s standing to bring the case.
But in an unusual footnote to the decision, Johnson states, “The court refrains from endorsing any theory of state ownership of animals and resources despite Wyoming’s legislative claims to such ownership. Johnson noted the U.S. Supreme Court had determined in a prior case state ownership of wild animals was merely a ‘19th century legal fiction’ that was ‘pure fantasy.’”
Other federal lawsuit determinations
The U.S. Supreme Court decision cited by Johnson was the 1979 case of Hughes vs. Oklahoma, in which the court overturned an 1896 ruling in Geer vs. Connecticut. Both cases involved use of the Commerce Clause in preventing game from becoming objects of interstate commerce.
In the Hughes case, the court noted, “The overruling of Geer vs. Connecticut does not leave the states powerless to protect and conserve wild animal life within their borders. Today’s decision makes clear, however, states may promote this legitimate purpose only in ways consistent with the basic principle our economic unit is the nation, and that, when a wild animal becomes an article of commerce its use cannot be limited to the citizens of one state to the exclusion of citizens of another state.”
In essence, if the wildlife at issue is involved in interstate commerce, the state can’t restrict its use in a way that burdens interstate commerce.
Other federal lawsuits have resulted in determinations a state cannot regulate federally-protected animals – animals protected by federal acts like the Endangered Species Act, Wild Horse and Burro Act, Migratory Bird Treaty, etc.
The high court’s Hughes vs. Oklahoma decision continues to recognize “the states’ interests in conservation and protection of wild animals as legitimate local purposes.”
In numerous cases, the Supreme Court has recognized the state’s legitimate interest in controlling and regulating wildlife within its borders, while acknowledging the state’s interest is not exclusive and absolute.
In a concurring opinion in the 1978 case Baldwin vs. Fish and Game Commission of Montana, Chief Justice Burger pointed out, although a state doesn’t “own” wild animals in the same way it may own other resources like land, “the doctrine is not completely obsolete. It manifests the state’s special interest in regulating and preserving wildlife for the benefit of its citizens.”
Cat Urbigkit is a corresponding writer for the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
