Laura Lundquist

(Missoula Current) Trains speed through Montana, sometimes killing grizzly bears caught on the tracks, so two organizations are suing the railroad company to make the tracks safer.

On Thursday, WildEarth Guardians and Western Watersheds Project filed a complaint in Missoula District Federal Court against the Burlington Northern Santa Fe railroad company, saying the company had allowed grizzly bears to die on its tracks for years without getting a take permit in violation of the Endangered Species Act. The two groups are asking the judge to stop BNSF from killing any more bears.

At the end of November, FWP biologists working in the Northern Continental Divide Ecosystem reported that, among the 44 bears that died this year, trains struck three grizzlies on the former Montana Rail Link tracks between Cut Bank and Sandpoint, Idaho.

On Sept. 6, a BNSF train struck a grizzly near Cut Bank. On the following day, a BNSF train ran down and killed a grizzly on a railway trestle north of Flathead Lake. The third bear died on Sept. 18 after being struck by a BNSF train in the Stillwater River drainage near Whitefish.

These are just the most recent bears to be hit on tracks running through Montana. Between 2008 and 2018, trains killed approximately 52 grizzlies, while 2019 was a tragic year with eight bears dying from train collisions in the NCDE, including a sow and two cubs.

After the 2019 spike in bear deaths, WildEarth Guardians and Western Watersheds Project filed notice of intent to sue BNSF for killing grizzly bears without the U.S. Fish and Wildlife Service having granted BNSF a “take” permit.

Under the Endangered Species Act, killing, injuring or harassing a threatened or endangered species qualifies as a “take.” The law acknowledges that sometimes it’s difficult to impossible to do some activities without ending up with a take, so companies or agencies can apply to the U.S. Fish and Wildlife Service for an incidental take permit. The Service reviews the application to either approve or reject it and to determine how much take it will allow to ensure the species population won’t be reduced unnecessarily.

BNSF first prepared a habitat conservation plan and applied to FWS for an incidental take permit in 2004, but nothing came of it.

After the two wildlife groups signaled their intent to sue in late 2019, BNSF again prepared a habitat conservation plan and applied for a permit in 2020. In a January 2020 release, BNSF said it created a rapid-response program for grain spills, the primary attractant for bears to railways, and expanded education of railway employees.
In response, the Fish and Wildlife Service said it was proposing to issue a take permit that would allow BNSF to accidentally kill 18 grizzly bears over seven years on the 206-mile run between Shelby, east of Cut Bank and Trego, south of Eureka in northwest Montana.

But after that, no agreement was reached. Western Environmental Law Center attorney Sarah McMillan said it’s not clear what caused the delay.

“We filed the notice of intent, and then we were in conversation with them and they took some action. So, in good faith, we were waiting and waiting. And then, it seemed like not as many bears were getting killed,” McMillan said. “Then this fall, when three in a row got killed, we decided to re-up our pressure.”

Apparently, in 2020, the U.S. Fish and Wildlife Service took public comment on the BNSF plan and returned it to the company with suggestions. But, after revising the plan, BNSF didn’t follow up, McMillan said. Some suggest that BNSF was betting the bear would be delisted so no action would be needed.

So, the groups dusted off their notice of intent in early October, and Thursday’s lawsuit is the result.

“I think within a week of our having filed the notice, BNSF started up again with their habitat conservation plan. So, it is currently in process. Now that we’ve filed our complaint, we hope it continues to be in process,” McMillan said. “We don’t trust that anything will happen without (the lawsuit). We may end up having to challenge the habitat conservation plan, too.”

The lawsuit suggests a number of actions that BNSF could take to make tracks safer for bears in addition to cleaning up grain spills. Remedies include having trains slow down around curves or in bottleneck areas like canyons to give bears a chance to get out of the way; installing warning systems that use bells and flashing lights to scare wildlife when a train is approaching; installing electrified mats or motion-detection alarms near trestles to scare bears away; and preventing livestock from getting near tracks and quickly removing any livestock carcasses from near tracks to keep bears from being drawn in.

The lawsuit says that, in addition to the Northern Continental Divide and Cabinet-Yaak grizzly bear recovery areas, these remedies should be used between recovery areas to prevent the loss of migrating bears.

“The Burlington Northern railway runs right alongside Glacier National Park, some of the most prime grizzly habitat in the world, so the railway should be expected to slow down and take precautions to ensure grizzly bears aren’t put at risk from train operations,” said Erik Molvar of Western Watersheds Project in a release. “With the addition of Montana Rail Link, BNSF now has additional responsibilities to protect grizzly bears in the Cabinet-Yaak ecosystem.”

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