[House Report 118-204]
[From the U.S. Government Publishing Office]


118th Congress }                                          { Report 
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 118-204

======================================================================
 
               GRIZZLY BEAR STATE MANAGEMENT ACT OF 2023

                                _______
                                

 September 20, 2023.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Westerman, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1245]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1245) to direct the Secretary of the Interior to 
reissue a final rule relating to removing the Greater 
Yellowstone Ecosystem population of grizzly bears from the 
Federal list of endangered and threatened wildlife, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                       PURPOSE OF THE LEGISLATION

    The purpose of H.R. 1245 is to direct the Secretary of the 
Interior to reissue a final rule relating to removing the 
Greater Yellowstone Ecosystem population of grizzly bears from 
the Federal list of endangered and threatened wildlife, and for 
other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 1245 requires the Department of the Interior to 
reissue the final rule entitled ``Endangered and Threatened 
Wildlife and Plants; Removing the Greater Yellowstone Ecosystem 
Population of Grizzly Bears from the Federal List of Endangered 
and Threatened Wildlife'' (82 Fed. Reg. 30502 (June 30, 2017)). 
The bill also prohibits the rule from being subject to judicial 
review.
    The grizzly bear was first listed under the Endangered 
Species Act (ESA) in 1975 as a threatened species in the lower 
48 states. A grizzly bear recovery plan was developed in 1982 
and amended in 1993 with the goal of delisting the species in 
the future.\1\ The 1993 recovery plan created six distinct 
recovery areas across the grizzly bear's historic range: the 
Greater Yellowstone Ecosystem (GYE), Northern Continental 
Divide Ecosystem, Cabinet-Yaak Ecosystem, Selkirk Ecosystem, 
North Cascades Ecosystem, and Bitterroot Ecosystem. The GYE, a 
22-million-acre region encompassing portions of Wyoming, 
Montana, and Idaho, including Yellowstone and Grand Teton 
National Parks, is home to one of the largest grizzly bear 
populations in the contiguous United States.\2\
---------------------------------------------------------------------------
    \1\``Grizzly Bear Recovery Plan.'' Dr. Christopher Servheen. 
September 10, 1993. fws.pdf (npshistory.com).
    \2\``In a changing ecosystem, Yellowstone grizzly bears are 
resilient'' U.S. Geological Survey. June 1, 2023. https://www.usgs.gov/
news/national-news-release/a-changing-ecosystem-yellowstone-grizzly-
bears-are-resilient.
---------------------------------------------------------------------------
    On March 29, 2007, the U.S. Fish and Wildlife Service 
(Service) published a final rule designating the GYE as a 
distinct population segment and removed GYE grizzly bears from 
the endangered species list.\3\ The rule was overturned in 2009 
by the Montana federal district court, in response to a lawsuit 
filed by the Greater Yellowstone Coalition against the 
Service.\4\ In his decision, Judge Donald Molloy stated that 
there were inadequate regulations to protect the grizzly bear 
once delisted and the Service did not consider other 
environmental factors, such as climate change.\5\
---------------------------------------------------------------------------
    \3\``Grizzly Bears; Yellowstone Distinct Population; Notice of 
Petition Finding; Final Rule.'' Department of the Interior. March 29, 
2007. 2007 Federal Register, 72 FR 14866; Centralized Library: U.S. 
Fish and Wildlie Service--FR Doc 07 1474 (fws.gov).
    \4\U.S. District Court of Montana. Greater Yellowstone Coalition, 
Inc. v. U.S. Fish and Wildlife Service. September 12, 2009.
    \5\``Grizzly Decision Detailed.'' Cat Urgbigkit. Pinedale Online!. 
Grizzly decision detailed--Pinedale, Wyoming (pinedaleonline.com).
---------------------------------------------------------------------------
    The Service again published a final rule delisting the 
grizzly bear within the GYE on June 30, 2017. The Montana 
federal district court again overturned the rulemaking on 
September 24, 2018, holding that the Service failed to consider 
how reduced protections for GYE grizzly bears would affect 
other populations and that the Service's application of the ESA 
threat analysis was arbitrary and capricious.\6\
---------------------------------------------------------------------------
    \6\``Grizzly Bears and the Endangered Species Act.'' Jenny Gesley. 
Congressional Research Service. July 28, 2021. Grizzly Bears and the 
Endangered Species Act In Custodia Legis (loc.gov).
---------------------------------------------------------------------------
    In 2021, the State of Wyoming petitioned the Service to 
delist the grizzly bear in the GYE, estimating its population 
to be 1,069 bears.\7\ This number is well above the recovery 
goal set by the Service of at least 500 grizzly bears or to 
maintain an average of 674 bears.\8\ In addition, GYE grizzly 
bears now occupy a land area of nearly 25,000 square miles, an 
area larger than the states of Connecticut, New Hampshire, and 
Massachusetts combined.\9\ States in the GYE region, including 
Wyoming, have formalized grizzly bear management plans in the 
event the species was delisted.\10\ The Wyoming management plan 
largely adheres to the Service's current population goals, 
prioritizes minimizing human and bear conflicts, and applies 
conservative management policies within areas outside of 
national parks.\11\
---------------------------------------------------------------------------
    \7\``Wyoming's push to delist grizzly bears from endangered species 
list faces opposition from anti-hunting group.'' Michael Lee. Fox News. 
January 21, 2022. Wyoming's push to delist grizzly bears from 
endangered species list faces opposition from anti-hunting group | Fox 
News.
    \8\``Grizzly Bear Recovery Program.'' 2021 Annual Report. Grizzly 
Bear Recovery Program. U.S. Fish and Wildlife Service. 2021 GBRP Annual 
Report.pdf (fws.gov).
    \9\``Secretary Zinke Announces Recovery and Delisting of 
Yellowstone Grizzly Bear.'' U.S. Department of the Interior. June 27, 
2017. Delisting of Yellowstone Grizzly Bear | U.S. Fish & Wildlife 
Service (fws.gov).
    \10\``Wyoming Game and Fish Commission approves tri-state grizzly 
management MOA.'' Wyoming Game and Fish Department. November 30, 2021. 
Wyoming Game and Fish Department--Wyoming Game and Fish Commission 
approves tri-state grizzly management MOA.
    \11\``Wyoming Grizzly Bear Management Plan.'' Wyoming Game and Fish 
Commission. May 11, 2016. Microsoft Word--Grizzly Bear Management Plan 
Amended July 2005.doc (wyo.gov).
---------------------------------------------------------------------------
    On March 23, 2023, Mr. Brian Nesvik, the Director of the 
Wyoming Game and Fish Department, testified before the 
Committee on Natural Resources Subcommittee on Water, Wildlife 
and Fisheries that ``Wyoming people have invested over $59 
million to recover this population from its low point when 
there were as few as 136 bears in the GYE.''\12\ He went on to 
state the following: ``In the case of the GYE, the states of 
Wyoming, Montana, and Idaho played a lead role in the 
population recovery. From a data collection, public education, 
conflict management, law enforcement, and research perspective, 
the states have conducted the overwhelming majority of the work 
despite the species being under federal authority.''\13\
---------------------------------------------------------------------------
    \12\``Testimony of Brian Nesvik.'' House Natural Resources 
Committee. March 23, 2023. testimony_nesvik.pdf (house.gov).
    \13\Id.
---------------------------------------------------------------------------
    In response to Wyoming's petition, the Service announced on 
February 3, 2023, that a delisting in the GYE ``may be 
warranted'' and initiated a 12-month status review of the 
species.\14\ The outcome of this review process may be 
promising. However, without legislation from Congress this rule 
will likely be vulnerable to litigation, as many previous ESA 
delisting rules have shown.
---------------------------------------------------------------------------
    \14\``Service to initiate grizzly bear status review in the 
Northern Continental Divide and Greater Yellowstone ecosystems.'' U.S. 
Fish and Wildlife Service. February 3, 2023. Service to initiate 
grizzly bear status review in the Northern Continental Divide & Greater 
Yellowstone ecosystems | U.S. Fish & Wildlife Service (fws.gov).
---------------------------------------------------------------------------
    For the ESA to work properly, there must be an achievable 
recovery goal for land managers and private landowners to 
reach. In the case of the GYE grizzly bear, that goal has been 
reached and we should be celebrating the GYE grizzly bear as a 
success story. The states of Wyoming, Montana, and Idaho are 
willing and able to take over management control of a delisted 
GYE grizzly bear population and this bill would enable just 
that.

                            COMMITTEE ACTION

    H.R. 1245 was introduced on February 28, 2023, by Rep. 
Harriet M. Hageman (R-WY). The bill was referred to the 
Committee on Natural Resources, and within the Committee to the 
Subcommittee on Water, Wildlife and Fisheries. On March 23, 
2023, the Subcommittee on Water, Wildlife and Fisheries held a 
hearing on the bill. On April 27-28, 2023, the Committee on 
Natural Resources met to consider the bill. The Subcommittee on 
Water, Wildlife and Fisheries was discharged from further 
consideration of H.R. 1245 by unanimous consent. Ranking Member 
Raul Grijalva (D-AZ) offered an amendment designated Grijalva 
#1. The amendment offered by Ranking Member Grijalva was 
withdrawn by unanimous consent. Rep. Katie Porter (D-CA) 
offered an amendment designated Porter #2. The amendment 
offered by Rep. Porter was not adopted by a roll call vote of 
16 yeas to 21 nays, as follows:


    Rep. Katie Porter (D-CA) offered an amendment designated 
Porter #4. The amendment offered by Rep. Porter was not adopted 
by a roll call vote of 17 yeas to 21 nays, as follows:


    Rep. Sydney Kamlager-Dove (D-CA) offered an amendment 
designated Kamlager-Dove #6. The amendment offered by Rep. 
Kamlager-Dove was not adopted by a roll call vote of 17 yeas to 
21 nays, as follows:


    Rep. Sydney Kamlager-Dove (D-CA) offered an amendment 
designated Kamlager-Dove #7. The amendment offered by Rep. 
Kamlager-Dove was not adopted by a roll call vote of 17 yeas to 
21 nays, as follows:


    Rep. Jared Huffman (D-CA) offered an amendment designated 
Huffman #8. The amendment offered by Rep. Huffman was not 
adopted by a roll call vote of 17 yeas to 21 nays, as follows:


    The bill was then ordered favorably reported to the House 
of Representatives by a roll call vote of 21 yeas to 17 nays, 
as follows:


                                HEARINGS

    For the purposes of clause 3(c)(6) of House rule XIII, the 
following hearing was used to develop or consider this measure: 
hearing by the Subcommittee on Water, Wildlife and Fisheries 
held on March 23, 2023.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 establishes the short title of the bill as the 
``Grizzly Bear State Management Act.''

Section 2. Removal of the Northern Continental Divide Ecosystem of 
        Grizzly Bears from the List of endangered and threatened 
        wildlife

    Section 2 requires the Secretary of the Interior, not later 
than 180 days after the enactment of the Act, to issue a final 
rule removing the Northern Continental Divide Ecosystem 
Population of Grizzly Bears from the federal List of endangered 
and threatened wildlife. This section also precludes the 
reissuance of the final rule from judicial review.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
section 308(a) and 402 of the Congressional Budget Act of 1974, 
the Committee has received the following estimate for the bill 
from the Director of the Congressional Budget Office:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 1245 would direct the Secretary of the Interior, 
without regard to other provisions of law, to reissue the final 
rule, ``Endangered and Threatened Wildlife and Plants; Removing 
the Greater Yellowstone Ecosystem Population of Grizzly Bears 
From the Federal List of Threatened and Endangered Wildlife.'' 
The bill also would exempt that reissued rule from judicial 
review. The rule was submitted by the U.S. Fish and Wildlife 
Service (USFWS), published in the Federal Register on June 30, 
2017, and took effect on July 31, 2017. A court order in 2018 
reinstated protection of the grizzly bears as a threatened 
species under the Endangered Species Act (ESA). Under H.R. 
1245, the reinstated rule would again remove grizzly bears in 
the Greater Yellowstone Ecosystem from protection under the 
ESA.
    USFWS is authorized to collect permitting fees for lawful 
activities that involve protected species, including scientific 
research, conservation, and unintentional taking of animals 
while performing permitted activities. Under H.R. 1245, permits 
would no longer be required for such activities involving 
grizzly bears in the Greater Yellowstone Ecosystem. Permitting 
fees are recorded in the budget as offsetting receipts (or 
reductions in direct spending) and are available to be spent 
without further appropriation. Using information from USFWS, 
CBO estimates that enacting H.R. 1245 would reduce those 
receipts and the consequent spending by an insignificant amount 
over the 2024-2033 period so that the net increase in direct 
spending would be negligible.
    Violators of the ESA are subject to civil and criminal 
penalties, which are recorded as revenues and available for 
spending without further appropriation. Using information from 
USFWS, CBO estimates that any reductions in penalties or 
associated spending would be insignificant because of the small 
number of related cases expected to occur over the 2024-2033 
period.
    Finally, CBO estimates that the administrative costs to 
reissue the regulation under H.R. 1245 would be insignificant; 
any spending would be subject to the availability of 
appropriated funds.
    H.R. 1245 would impose an intergovernmental and private-
sector mandate as defined in the Unfunded Mandates Reform Act 
(UMRA) by eliminating a right of action for entities to seek 
judicial review of the administrative rule required by the 
bill. Because the rights of action precluded under the bill do 
not generally result in monetary damages, CBO estimates that 
the cost of the mandates would fall well below the 
intergovernmental and private-sector thresholds established in 
UMRA ($99 million and $198 million in 2023, respectively, 
adjusted annually for inflation).
    The CBO staff contact for this estimate is Lilia Ledezma 
(for federal costs) and Brandon Lever (for mandates). The 
estimate was reviewed by Emily Stern, Senior Adviser for Budget 
Analysis.

                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to direct the Secretary of the 
Interior to reissue a final rule relating to removing the 
Greater Yellowstone Ecosystem population of grizzly bears from 
the Federal list of endangered and threatened wildlife, and for 
other purposes.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    According to the Congressional Budget Office, H.R. 1245 
would impose an intergovernmental and private-sector mandate as 
defined in the Unfunded Mandates Reform Act by eliminating a 
right of action for entities to seek judicial review of the 
administrative rule required by the bill. However, the 
Congressional Budget Office estimates that the cost of the 
mandates would fall well below the intergovernmental and 
private-sector thresholds established in the Unfunded Mandates 
Reform Act, which are $99 million and $198 million in 2023, 
respectively, adjusted annually for inflation.

                           EXISTING PROGRAMS

    Directed Rule Making. This bill directs the Secretary of 
the Interior, an executive branch official, to reissue the 
final rule entitled ``Endangered and Threatened Wildlife and 
Plants; Removing the Greater Yellowstone Ecosystem Population 
of Grizzly Bears From the Federal List of Endangered and 
Threatened Wildlife'' (82 Fed. Reg. 30502 (June 30, 2017)).
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's purpose 
and text and the Supremacy Clause of Article VI of the U.S. 
Constitution.

                        CHANGES IN EXISTING LAW

    As reported by the Committee on Natural Resources, H.R. 
1245 makes no changes in existing law.

                            DISSENTING VIEWS

    H.R. 1245 would legislatively de-list the Greater 
Yellowstone Ecosystem grizzly bear, located around Yellowstone 
National Park in Wyoming, Montana, and Idaho, from the 
Endangered Species Act (ESA). It directs the Secretary of the 
Interior to reissue the final 2017 rule de-listing the Greater 
Yellowstone Grizzly, ``Endangered and Threatened Wildlife and 
Plants; Removing the Greater Yellowstone Ecosystem Population 
of Grizzly Bears From the Federal List of Endangered and 
Threatened Wildlife'' (82 Fed. Reg. 30502 (June 30, 2017)). 
H.R. 1245 includes provisions allowing the Secretary to de-list 
this distinct population segment (DPS) without regard to any 
other law that would normally apply to issuing that final rule, 
such as the Administrative Procedure Act. The bill would not 
allow the rule to be subject to judicial review.
    The Greater Yellowstone Ecosystem (GYE) grizzly bear 
population once numbered as few as 136 individuals, but it has 
slowly recovered to approximately 730 individuals.\1\ Despite 
population size and range increases, grizzlies are threatened 
by genetic bottlenecks, habitat loss, lack of habitat 
connectivity, climate change, hunting, and other contact with 
humans. With increased grizzly population numbers and continued 
human encroachment and development in grizzly habitat, 
encounters have increased. Unfortunately, state management 
often allows the hunting of grizzlies, and even with 
protections under the ESA, ``problematic'' grizzlies are 
killed.\2\ Conflicting opinions on state management and federal 
protections have created contention around grizzly management, 
resulting in many petitions to de-list the grizzly and lawsuits 
regarding listing decisions over the years.
---------------------------------------------------------------------------
    \1\Haroldson, M. A., B. E. Karabensh, and F. T. van Manen. 2020. 
Estimating number of females with cubs. Pages 12-18 in F. T. van Manen, 
M. A. Haroldson, and B. E. Karabensh, editors. Yellowstone grizzly bear 
investigations: annual report of the Interagency Grizzly Bear Study 
Team, 2019. U.S. Geological Survey, Bozeman, Montana, USA.
    \2\See, e.g., Brown, M. US May Lift Protections for Yellowstone, 
Glacier Grizzlies. February 3, 2023. https://apnews.com/article/us-
fish-and-wildlife-service-alaska-montana-wyoming-idaho-
ff09eccea665e580248c44692d46115d.
---------------------------------------------------------------------------
    The U.S. Fish and Wildlife Service (FWS) is conducting a 
status review based on three petitions to de-list the grizzly 
bear, two of which would de-list the grizzly in the GYE. Upon 
completion of the evaluation, the FWS may choose to alter the 
listing status of any of the petitioned populations.
    This bill attempts to bypass the species status assessment 
and congressionally de-list the grizzly bear in the GYE and 
prevent any similar listing in the future.
    The passage of this bill would circumvent the FWS review 
process that is currently ongoing and being conducted by 
experts in their field based on the best available science. If 
supporters of this bill believe that the best available science 
points to recovery and warrants the de-listing of grizzly 
populations in the GYE, then they should present relevant data 
to the FWS and feel confident that an appropriate listing 
decision will be made. The current FWS review will be over in 
less than 12 months, with an announcement expected in February 
2024. The rush for Republicans to bring this legislation 
forward before the FWS results are published lends doubt to 
their claims that state management is adequate to protect the 
grizzly from future harm and underscores the need for an 
unbiased, scientific review of the facts to determine species 
listing and de-listing under the ESA.
    Further, many Native Americans value the grizzly bear in 
ways that are not--and cannot be--accounted for under the ESA. 
Their concerns should be considered in the future of grizzly 
management. Blocking judicial review removes a vital avenue for 
public and tribal recourse on grizzly management issues. The 
bill ignores federal trust responsibilities with tribes and 
skips tribal consultation, leaving tribes entirely out of the 
process.
                                          Raul M. Grijalva,
              Ranking Member, House Committee on Natural Resources.

                                  [all]