Some Wonder If A New State Bill Authorizing Grizzly Hunting May Be Illegal?

Mar 1, 2019

Back in September, a federal judge ruled the Greater Yellowstone grizzlies should be put back under Endangered Species Act protections, which means the federal government has the last say in the bear's management. But during Wyoming's legislative session, Governor Mark Gordon signed a bill that authorizes the Wyoming Game and Fish Commission to manage grizzly bears. If the commission does decide to manage the bears, would it be legal?

Senate bill 93 has two parts: first, it authorizes the Wyoming Game and Fish Commission to issue a grizzly bear hunt, and, second, the commission could relocate problem bears to California or other willing states with suitable habitats. Since grizzlies are listed as threatened, these decisions are currently made by the federal government, not by the state.

As to whether this is legal, let's start with the more controversial part of the bill: a grizzly hunt.

"If Wyoming moved forward with this hunt, it's just so blatantly illegal," said Noah Greenwald of the Center for Biological Diversity, one of the environmental groups that a filed a notice to sue Wyoming if it proceeds with a hunt.

"The supremacy clause of the Constitution makes it clear that federal law trumps state law. Wyoming is essentially throwing a tantrum. They didn't get what they wanted and so they are passing what essentially amounts to an illegal law," he said.

But it turns out, it's not so black and white. Paul Weiland, an attorney with Nossaman LLP, specializes in Endangered Species Act issues. He said the law's legality depends on how the commission decides to design the hunt.

"They could try to establish a set of rules that would align a hunt with the 4(d) rule," he said.

The 4(d) rule allows the U.S. Fish and Wildlife Service (USFWS) some flexibility to allow killing a threatened animal in certain circumstances. For grizzly bears, the rule allows removal in self-defense or in defense of others and when bears get too comfortable near people.

"They [the commission] could presumably, if they are inclined, they can work with USFWS to say, 'This is what we're thinking,' get their input on whether they think it's consistent with the rule," said Weiland.

Weiland said, in that case, it's possible this rule could be revised to allow a hunt that targets problem bears, but it would have to look a little different than other hunts.

"In terms of the way one might normally conceive of a hunt, where you are just issuing a bunch of licenses and maybe putting a cap on the total number of bears that could be killed that seems like it would run afoul with the law right now," he said.

He said, it's also possible the commission could get a special permit from the federal government to move forward with a hunt, or the court of appeals could overturn the lower court's decision.

But is this something the commission is actually considering? State Senator Wyatt Agar sponsored the bill. He said the commission said they would consider it, but they are waiting on some other moving pieces before committing.

"Hopefully, we'll get a resolution from that court case. If we do, this bill has verbiage that'll lay out how they can proceed with a hunting season this year," said Agar. "The number two is we've sent that joint resolution to Washington and we're hoping to get action from the Interior and from our state delegation back there."

But if all those options fail, Agar said the hunt is on the table.

As far as the part of the bill that would transfer grizzlies to California or other states, that would also need approval from U.S Fish and Wildlife Service but could be more feasible. Peter Alagona, the founder of the California Grizzly Research Network, said there's some validity to the proposition.

"I see the ball, to a certain extent, in Wyoming's court. If they are actually serious about this and it's not a joke, then maybe this will crack open the door for some kind of innovated future conservation effort," said Alagona.

But he said California is a long way from being in the position to where it can accept grizzly bears. For the time being, the bill looks more like Wyoming legislators making a statement about where they stand on the issue, rather than actually making any real changes in management.