Judge orders USFWS to re-examine bison ruling

BILLINGS – A U.S. District Court judge sided with bison advocates this week by ordering the U.S. Fish and Wildlife Service to revisit its decision regarding a denial of evidence submitted in an attempt to have Yellowstone National Park’s bison protected under the Endangered Species Act.

In a 33-page memorandum opinion, District of Columbia Judge Randolph D. Moss said he had no view on the ESA issue. Rather, he said the Fish and Wildlife Service had applied the wrong standard and failed to address a significant aspect of the question before it when it last denied the petitioners’ arguments.

“It is concerning, to be sure, that over seven years have now passed since the 2014 petition was filed,” Moss wrote. “But it remains unclear whether sufficient basis exists to proceed to the next stage of the ESA process, and in light of the substantial amount of work done to date, the Service should be able to answer that question promptly.”

Although the judge set no deadline for the Fish and Wildlife Service response, he did require the parties to file a joint status report within 90 days to update the court.

Since 2014, Buffalo Field Campaign and Western Watersheds Project have been fighting to have Yellowstone’s bison declared endangered or threatened under the Endangered Species Act.

The request is based on an argument that Yellowstone contains two genetically distinct subpopulations, the Central and Northern herds, which are often separated geographically but do intermix. To back up the claim, they pointed out that only 22 indigenous bison remained in Central Yellowstone in 1902. Meanwhile, the Northern herd is descended from 18 females from northern Montana and three bulls from Texas introduced in 1902.

The Central herd tends to remain around the Madison River while the Northern herd is found along the Yellowstone and Lamar rivers.

Under an agreement with the state of Montana, in an attempt to avoid bison infected with the disease brucellosis from passing it to livestock, the state and National Park Service agreed in 2000 to allow the slaughter of bison and bison hunting to reduce the park’s bison population. The theory was that fewer bison would mean fewer would wander out of the park in winter when they might come into contact with cattle and spread brucellosis.

Since that agreement was forged, however, the Central bison herd’s population has declined. To support a demand for boosting the bison population, the conservation groups cited a 2014 study that found the two herds were genetically distinct. So rather than set a limit of 3,000 bison for the entire park, they argued the population should be 3,000 bison for each herd.

The Fish and Wildlife Service, which implements the Endangered Species Act, dismissed the study and instead touted a different one that examined the bison’s mitochondrial DNA. This study did not support the claims of distinct bison populations. Therefore, no change to existing management was warranted, the agency argued.

The Fish and Wildlife Service had also said the petitioners “failed to adequately account for mixing between the central and northern herds.” Ignoring this “suggests that the substructure of two distinct lineages in two distinct herds may not be sustained over time.”

Judge Moss said the USFWS’s 2019 finding “offers no analysis of why, in the Service’s view,” it chose one study over the other. The agency failed to “articulate … a ‘rational connection between the facts found and the choice made.’ ”

Whether the issue will get more attention now that Martha Williams, the former director of Montana Fish, Wildlife & Parks, is on track to become the new director of the USFWS is uncertain.

When Montana congressman Ryan Zinke was appointed to lead the Department of Interior, the USFWS denied the bison ESA petition. At the same time, he was urging the Park Service to manage Yellowstone’s bison more like livestock.