Officials say grizzly bears in Yellowstone are thriving enough to be taken off the Endangered Species Act list. But if Congress passes a new bill, the act that helped preserve the bears may be headed for extinction.

    Last Tuesday, the grizzly bears that live in Yellowstone National Park socked in for the winter. Some got in some last-minute feeding, perhaps gorging on high-calorie whitebark pine nuts cadged from an unlucky ground squirrel's cache. Others were digging out their dens with those huge, powerful claws, getting their beds shipshape for the coming hibernation. And many were already snugly tucked in for the long sleep. But in Washington, DC, far away from the largest grizzly population in the lower 48, humans were making portentous pronouncements that could roil even the fattest grizzly's peaceful slumber. The word from Washington: There are enough grizzlies in the Yellowstone area to declare that the bears are no longer threatened and to take Endangered Species Act protections away from them.

    Environmentalists are divided over the decision, with some advocates arguing that it is premature and others supporting it. But all of them, as well as federal wildlife officials, agree that the grizzly's comeback is due in large part to the Endangered Species Act, which has helped preserve the big predator's habitat. And environmentalists are gearing up to fight a new bill, written by Rep. Richard Pombo, R-CA, that they say would fatally weaken the ESA.

    "It's a terrible bill. It undermines all of the fundamental protections of endangered species," says Bob Irvin, senior vice president for conservation programs at Defenders of Wildlife. "It would be devastating to endangered species and their habitats, across the board. In the 30-year history of the Endangered Species Act, it's certainly the first time the House of Representatives has passed such an egregious measure to weaken the act."

    On Nov, 15, Secretary of the Interior Gale Norton proposed a major change for the grizzlies that live in the Yellowstone area, removing them from the federal threatened-species list.

    "When it was listed in 1975, this majestic animal that greeted Lewis and Clark on their historic expedition stood at risk of disappearing from the American West," Norton said. "Thanks to the work of many partners, more than 600 grizzlies now inhabit the Yellowstone ecosystem, and the population is no longer threatened. With a comprehensive conservation strategy ready to be put into place upon delisting, we are confident that the future of the grizzly bear in Yellowstone is bright. Our grandchildren's grandchildren will see grizzly bears roaming Yellowstone."

    For the Bush administration officials, the announcement was a chance to trumpet a major environmental coup: the country's most celebrated land predator restored on George W.'s watch! But some environmentalist groups, including the Natural Resources Defense Council and Defenders of Wildlife, see the proposed delisting as a case of kicking a still ailing - if improving - patient out of the hospital.

    These environmentalists argue that delisting will make the grizzly's habitat more vulnerable to logging, roads and development. Currently, under the Endangered Species Act, federal agencies must consider the impact on grizzlies when, say, the Forest Service decides to build roads for logging or open up a new area of harvestable timber. When they haven't, the ESA has given environmentalists grounds to sue. In the past, to protect bears, the act has been employed to stop a ski development in the Gallatin Forest, argue for the removal of a fishing bridge where Yellowstone bears competed with humans for trout, and argue for major road closures in the Flathead, Gallatin and Targhee forests - all lands that are contiguous to Yellowstone and that form the major portion of the grizzly's habitat.

    Those humans who are lined up against delisting the grizzly point out that the bears are an isolated population, lacking habitat corridors connecting them with other grizzly populations, which would give them healthy genetic diversity for the long term. "I don't think that you should be moving an intensively managed population on a small habitat island from the endangered-species list," says Craig Pease, a biologist at Vermont Law School. "It looks to me like they should be on the endangered-species list forever."

    Delisting the grizzlies will turn responsibility for their welfare over to the states - which will mean some of them will be facing the barrel of a gun. Wyoming, Idaho and Montana, which along with Washington are the only states in the contiguous US where grizzlies remain, have already announced plans for grizzly hunts when they take over the bears' management, which could be as soon as late 2006. But environmentalists fear that controlled hunting is not the biggest danger grizzlies will face if delisted. Under the Endangered Species Act, the grizzlies can be shot only if they threaten human life. But if they're taken off the list, they can be blown away if they threaten human property, according to Louisa Willcox of the Natural Resources Defense Council. Snacking in an orchard could be grounds for summary execution. Under current federal protection, poaching a grizzly can carry a fine in the thousands, plus restitution fees up to $15,000. Poaching would carry with it a fine of just $700 in states like Wyoming when the bears are no longer listed as federally threatened.

    When Europeans arrived, between 50,000 and 100,000 grizzly bears ranged from the Pacific Coast to the Mississippi River. But they're mostly gone now, wiped out by habitat loss as humans moved into their domains. The bear whose image is on the California flag can no longer be found anywhere in the state. The bears have been driven out of 98 percent of their historic range in the lower 48 states. There are just 1,200 or so left there, including the largest single population, the 600 bears that live around Yellowstone, which could be delisted (30,000 grizzlies live in Alaska, and 22,000 in Canada).

    "They're in less than 2 percent of their native habitat," says Dick Dolan, conservation director for the Greater Yellowstone Coalition in Bozeman, Mont. "We've got them ringed in, and their habitat is not coming back. They're not going to be wandering across the plains of central Wyoming again. It's never going to happen."

    Some environmental groups support the decision to delist. The National Wildlife Federation sent out a grizzly e-mail alert with the subject line "I'm back, baby!" to its members last Tuesday. They argue that the bear population in and around Yellowstone is now healthy enough to be managed by the states, with the looser protections that implies.

    The federal government's plans to delist will now enter a public comment period, during which everyone from environmental groups to business lobbyists to the general public will have a chance to weigh in. Most analysts expect the delisting to go forward.

    While environmentalists and grizzly conservationists may argue the merits of delisting, there's one thing that they all agree on: The Endangered Species Act has kept the bears roaming in the northern Rockies.

    "It's probably one of the greatest success stories under the Endangered Species Act," says Chris Servheen, grizzly bear recovery coordinator for the US Fish & Wildlife Service. "It's a very difficult species to get to recovery." The grizzlies are second only to the musk oxen in North American land mammals for the slowness of their reproductive rate. And the bears need large home ranges, about 100 square miles for females and 300 for males. Plus, there's that old deadly-conflict-with-humans problem.

    "It's obvious that the Endangered Species Act has worked because there are more bears now than when they were protected," says Marv Hoyt, Idaho director for the Greater Yellowstone Coalition, which opposes delisting. "Federal protection is the only reason these bears exist in Yellowstone today, and they aren't yet ready to survive without it," says Wilcox from the Natural Resources Defense Council.

    Yet at the very moment that the highest federal environmental officials in the land, from Gale Norton on down, are trumpeting the return of the grizzly as an Endangered Species Act success story, the act itself is on the brink of endangerment. The House recently passed Pombo's Threatened and Endangered Species Recovery Act of 2005, which would strip the ESA of many of the protections that have helped the grizzly come back. Environmentalists say the Pombo bill threatens far more than the grizzly population or even endangered species in general: If passed, it could jeopardize wildlife protection and conservation throughout the country.

    Last April, I went to Yellowstone National Park to see the grizzly comeback firsthand. At 7 a.m. on a brisk spring morning, I watched a mother grizzly swinging her head back and forth, her big black nose sniffing the air. Even down on all fours, the sow dominated the rocky outcropping scattered with Douglas fir. Weighing in at 300 pounds, the bear lolled 180 degrees to the right, then left, then back again, using her long snout to scan the crisp air for any whiff of danger.

    The grizzly mom was protecting her yearlings, which gamboled nearby, rooting in the dirt on the hillside. With all the intensity of adolescents, the cubs tore at the earth with their claws, trying to grub up some ants, moths or worms to eat. The three 80-pounders threw their bodies into the effort, their paws sending dirt and moss careening off the hillside behind them. The pronounced humps on their silvery, yellowish brown backs showcased the powerful muscles that come together at their shoulders. These bruisers are built to turn over logs, move boulders, excavate dens, strike prey. Then about a year and a half old, the cubs still nursed and would continue to stay with mom for another year, before she literally ran them off to wean them.

    That morning, those four grizzlies ruled the south side of Lamar Canyon, above Lamar River, just north of Specimen Ridge in Yellowstone. Below them, on surrounding hillsides, hoary-looking bison with their awkward just-born calves, pregnant elk and expectant pronghorn antelope grazed on new grass in herds. A trio of coyotes yipped and howled. Just behind the bears, visible over the top of the ridge, a red-tailed hawk perched on a limber pine.

    Ensconced in America's oldest national park, these bears are the top of the food chain - so-called apex predators - along with the gray wolf, which has been successfully reintroduced into the park after being exterminated there, another Endangered Species Act success story. These great predators are one of the main draws for the park's more than 3 million annual visitors, who hope to catch a glimpse of just such unfettered wildness - from a safe distance, of course - and go back home to whatever tamed city or suburbs they live in with a good story to tell.

    It wasn't always this way. As recently as the early '70s, the bears living in this park weren't as wild as they are now. They'd become scavengers, having enjoyed a 70-year run of rummaging through the trash at open-pit garbage dumps while park visitors gawked nearby. Some grizzlies had even come to take treats directly from visitors, right out of car windows. "There was a huge problem with bears who were dependent on human food sources and were not afraid of people," says Tom France, director of the National Wildlife Federation's northern Rockies office.

    And when bears and humans tangled, most often the bears ended up dead. "When the bear got listed, most of the mortalities were occurring in the park because that's where the dumps and the conflicts were with people," says Willcox from the Natural Resources Defense Council. In the mid-'70s, the feds decided to wean the grizzlies from the human handouts. But closing the dumps led to about 150 bears having to be killed by federal agents in the following five years, when they got into trouble as they continued to turn to humans for food. But as bears learned to fend for themselves again, the population surged: "The bear population we have in Yellowstone now is not only larger, it's wilder. It's almost entirely dependent on wild food and has a much greater wariness of people," France says. "Those who want to take the teeth out of the ESA try to portray it as a failure. The Yellowstone grizzly situation refutes that."

    Now, after decades of bear-proof containers and visitor education - all a part of bear recovery - the new generation of bears, like the mothers and cubs I saw, are both more independent and more numerous. The great bears were one of the first species to enjoy protection under the Endangered Species Act, and there were thought to be 200 to 250 bears in the area at that time. Now, the feds estimate that there are 600, even as the human population in the Yellowstone area has boomed, too.

    These days, the motto in bear country is "A fed bear is a dead bear." Beyond cleaning up dumps in the parks there are now measures to minimize other bear attractants, from mandating back-country food storage containers to limiting sheep grazing in grizzly habitat. It's even brought better garbage-management techniques to areas on private land. And bears are relocated instead of being immediately killed when they get into trouble with garbage or livestock.

    The Endangered Species Act also helped create more space for bears: "We didn't take a gun and go out and shoot bears," says Hoyt from the Greater Yellowstone Coalition, referring to the initial decline in the bears' population. "We just logged the heck out of their habitat and they quit using this area." The act not only stopped the hunting of bears but also forced federal agencies to take a "look before you leap" approach to road building or timber allotments and assess how an activity would affect the bears before greenlighting it.

    But if the Pombo bill is approved, environmentalists say, not just the grizzly but wildlife conservation in general will be the endangered species.

    Richard Pombo is probably the most virulently anti-environmental Congress member in the country. A major landowner in his Tracy, Calif., district, just east of the San Francisco Bay Area, he subscribes to a doctrine of private-property rights über alles. In the 1996 book he coauthored, "This Land Is Our Land: How to End the War on Private Property," Pombo writes: "In theory, the ESA saves species from the depredations of humankind and restores them to viable populations. In actuality, it violates property rights and has arguably resulted in the recovery of no species. It has cost the United States billions of dollars - not only in direct costs, but in lost opportunity costs for economic growth."

    In keeping with this philosophy, the Pombo bill allows developers to demand financial restitution from the government if the presence of an endangered species leads the US Fish and Wildlife Service to curb development. Environmentalists see this provision as spelling doom for the entire ESA. "If you're a developer, under the Pombo bill, what you want to do is propose the most expensive development you can which will have the most disastrous results for endangered species, because that's what you can demand payment for from taxpayers," says Irvin from Defenders of Wildlife.

    Like some kind of reverse Robin Hood, Pombo's bill promises payback. It aims to extract those billions from the federal government for the developers whom he sees the Endangered Species Act as having robbed. Kostyack, senior council for the National Wildlife Federation, says that this is the provision that essentially makes all the rest of the regulatory twists in the bill beside the point. It would essentially require the feds to pay developers for the projected losses on a proposed project if preserving endangered species gets in the way of it. In other words, if this bill passes, it would be a great time to propose building a casino or a resort on some endangered species habitat, and then sit back and wait for your payout. In the end, it creates a huge financial incentive to threaten to crush endangered species. And no doubt, the federal government will want avoid such big payouts, so there goes enforcement of endangered-species protections.

    "Every year, there are grizzly bears in Cody, Wyoming, that end up on private lands," says Hoyt from the Greater Yellowstone Coalition. "If you had to pay each of those landowners to protect that habitat, the costs would be insurmountable." He argues that this part of the bill would essentially mean that the Endangered Species Act would apply only on public lands.

    Or maybe the whole ESA would be kaput because there will be no money to enforce it. "There's no money in the bill to pay for this, so its clear purpose is to thwart any enforcement of the ESA. If the Fish and Wildlife Service is wiped out by these payments to developers, they're not going to be able to enforce the act anywhere," says Kostyack from the National Wildlife Federation.

    "The Pombo bill is not analysis paralysis. It's fiscal paralysis," says Doug Honnold, a lawyer for Earthjustice, a nonprofit public-interest environmental law firm. "By driving up costs, it makes the ESA unworkable. A consequence of that is that no species would get adequately protected." An analysis by the Congressional Budget Office found that the US Fish and Wildlife Service and the Animal and Planet Health Inspection Service would have to spend $2.7 billion between 2006 and 2010 if the bill passes.

    Pombo and other critics of the ESA claim that the act has been a failure because only a handful of species have been deemed recovered since it passed in 1973 (President Nixon signed it with huge support from Congress). The act was meant to function as a safety net to catch species careening toward extinction and bring them back from the brink. But while it's rescued hundreds of species, like the bald eagle, American alligator and whooping crane from the abyss, it hasn't brought more than a handful to full recovery.

    Yet, the changes to the Endangered Species Act that Pombo is now proposing in the name of "reforming" the act will do nothing to help more species recover. Take the case of the grizzly bear. If Pombo's proposed changes to the bill had been in effect, would the grizzly have come back as much as it has in Yellowstone? France from the National Wildlife Federation, who believes the bears are ready to be delisted, doesn't think so: "The Pombo bill would undermine a lot of what the agencies have done."

    Right now, any federal agency that is contemplating taking an action that might jeopardize a threatened or endangered species, such as logging a forest, must consult the Fish and Wildlife Service about how that would affect the critter in question. "One of the main reasons that the bear has enjoyed a resurgence is that the ESA has prevented us from managing the ecosystem in the old way, which was commodities first, worry about the ecosystem later," says Dolan from the Greater Yellowstone Coalition.

    Under the ESA, the Fish and Wildlife Service has worked with everyone from the Bureau of Land Management to the Forest Service, the National Park Service, the US Geological Survey and state wildlife agencies on grizzly recovery, but the buck stopped with the Fish and Wildlife Service. "The agencies that are trying to push through projects are not necessarily the best agencies to make decisions about what a species needs, so right now, Fish and Wildlife has the final call on what constitutes jeopardy," explains John Kostyack, senior council for the National Wildlife Federation.

    After overcoming initial mistrust, the agencies came to work together very effectively on grizzly recovery. Currently, the Interagency Grizzly Bear Committee coordinates efforts to bring the bears back in six regions in the lower 48, including Yellowstone. "The act has required agencies, like the Forest Service, to not just manage for timber production, but to manage for bears. And they've done a good job of that in cooperation with the Fish and Wildlife Service," says Bob Irvin, senior vice president for conservation programs for Defenders of Wildlife.

    Under the Pombo bill, the secretary of the interior can circumvent that consultation requirement. So much for the structure that has proved to work. The Pombo bill also invites the secretary of the interior to get involved with determining which science to rely on when a decision is being made about impacts on an endangered species. "This bill is basically an invitation to let the political officials muck around with these decisions that should be guided by biology," says Kostyack of the National Wildlife Federation.

    And, under the Pombo bill, when an agency wants to do something that could hurt bears, it need only consider the impact of that single action. Every logging project or oil and gas lease could be evaluated individually, without regard for the bigger picture of what is happening in the overall habitat, says Honnold from Earthjustice. So, Pombo's initiative, Honnold says, subjects "threatened and endangered species to death by a thousand paper cuts. In the grizzly bear context, that death could come through many individual logging projects and small-scale oil and gas leases."

    One of the main arguments for delisting the grizzly in the Yellowstone area is that if states don't do a good job of keeping populations stable, as environmentalists fear, the feds can always step in and relist the bears. But biologists and environmentalists worry that by the time that happens, the act that helped save the grizzly over the last 30 years will be so full of holes it won't have the teeth to save the bears again.

    The Pombo bill has already passed the House of Representatives and is now in the Senate Committee on Environment and Public Works, which is chaired by James Inhofe, R-Okla., whose environmental record is best exemplified by his recent suggestion on the Senate floor that "man-made global warming is the greatest hoax ever perpetuated on the American people." The bill is being considered in that committee's Fisheries, Wildlife and Water Subcommittee, which includes a moderate Republican, Lincoln Chafee of Rhode Island, son of the late, great conservationist John Chafee, who has a National Wildlife Refuge named after him. If Democrats also on the subcommittee, like Hillary Clinton hang together, Chafee could be the swing vote that keeps the bill from going further.

    While the feds are merrily celebrating the resurgence of the grizzly in Yellowstone, Congress is considering undermining the very law that's made it possible for the bears to stage a comeback there. That's some cold way for the grizzlies bedding down in Yellowstone to start the winter.