Thanks for digging into the document... I guess I could pull the actual brief to see the specific argument. Maybe I'll find the time
All right, did some more digging, and gotta say, you were right, and this is another classic case of the govt shooting itself in the foot, and finding an interesting way to do it. The problem on the issue of recalibration is that just before the 2017 delisting, FWS published a supplemental revised recovery criteria that appended 3 updated criterion to the 93 recovery plan, the third of which is:
"Demographic Recovery Criterion 3—Maintain the population within the DMA
around the 2002–2014 model-averaged Chao2 population estimate (average = 674;
95% CI = 600–747; 90% CI = 612–735) by maintaining annual mortality limits for
independent females, independent males, and dependent young as per table 2. These
adjustable mortality rates were calculated as those necessary to manage the
population to the model-averaged Chao2 population estimate of 674 bears which
occurred during the time period that the population had a relatively flat population
trajectory. If mortality limits are exceeded for any sex/age class for three consecutive
years and any annual population estimate falls below 612 (the lower bound of the
90% confidence interval), the IGBST will produce a Biology and Monitoring Review
to inform the appropriate management response. If any annual population estimate
falls below 600 (the lower bound of the 95% confidence interval), this criterion will
not be met and there will be no discretionary mortality, except as necessary for
human safety."
I think their intentions were good, but a mistake by FWS to use this criteria, should have based it off genetic work somehow. Typical lawyer work, like your example of proving an empty chamber, focusing on the possibility that a different estimator could be used at some point, and that there isn't an explicit gaurantee of recalibration, even though there's no mention of changing methods or refusal to recalibrate. I'd argue that the criteria explicitly states Chao2 would be used, so it's implicit that use of another method would require a new calculation of the population average at the point where it "began to demonstrate density-dependent population regulation from 2002 to 2014" and I really think Wyoming should just say if a new method is used any point in the future recalibration would happen then, even if they're right in that there's no change in counting method proposed at this time, and that all the changes would go through committee. Jump through the hoops, just make the damn judges happy! Same with discussion of future translocations, they say "would consider" translocations as they don't want to tie their hands or rile the public, just provide more detail about how you'd "consider" translocations, provide some alternatives, and count on it not needing to happen since in reality it probably would never be necessary. Sad that a rational argument rarely beats a purely legal argument.
I watched the video of their virtual meeting, it's painful at times, but interesting...