Judge hears case against feds killing dispersing bears
Laura Lundquist
(Missoula Current) To ensure their future, grizzly bears need to be able to migrate between recovery areas, so wildlife advocates want a judge to require a predator-management agency to take a closer look at how they treat grizzlies outside of recovery areas.
On Friday, Missoula federal court judge Dana L. Christensen heard oral arguments between the U.S. Department of Agriculture’s Wildlife Services and plaintiffs who say Wildlife Services needs to take a more thorough look at how and where they capture and sometimes kill grizzly bears.
Western Environmental Law Center attorney Matthew Bishop said Wildlife Services is responsible for dealing with wildlife that come into conflict with livestock producers, in this case grizzly bears. For example, in 2021-2022, Wildlife Services killed seven grizzlies and transferred another 16 to Montana Fish, Wildlife & Parks for an unknown fate.
But, Bishop said, the agency didn’t follow the National Environmental Policy Act in 2021 when it conducted a limited environmental assessment of how such removals affect grizzly populations. It should have completed a more detailed environmental impact statement, which provides the public with a “hard look” at direct, indirect and cumulative effects.
“This is not just about creating more paperwork. It’s about making more informed decisions,” Bishop said. “Wildlife Services is largely operated in a black box without a lot of oversight and with a lot of coordination from Montana Fish and Wildlife and Montana Department of Livestock - two state agencies that are not subject to NEPA and don’t have to disclose those kinds of effects. This is the only opportunity, the best chance to force a public agency to get it right and fully disclose all of the effects of this action to the public.”
When they filed their complaint in January 2023, the plaintiffs - WildEarth Guardians, Western Watersheds Project and Trapfree Montana - said Wildlife Services didn’t include information in its environmental assessment on where grizzlies were captured or what kind of bears - male, female, young old - were caught.
While the environmental assessment reported general numbers for grizzly monitoring areas, it mentioned nothing for regions between recovery areas. Wildlife Services also didn’t follow up to see what happened to the bears that were transferred to FWP.
“NEPA requires Wildlife Services to analyze the entire effect of its action where the actions are occurring. Here, that includes where grizzly bears are moving between recovery zones and how that might affect the species. That’s what the agency never did here,” Bishop said.
Bishop said the plaintiffs were requesting a new full analysis, but they didn’t want Christensen to throw the environmental assessment out completely in the meantime. If he did, Wildlife Services would have to go back to following its 1997 assessment, which allowed more lethal removal.
Arguing for Wildlife Services, Department of Justice attorney Krystal-Rose Perez said the U.S. Fish and Wildlife Service is the final authority on the fate of every grizzly so it, not Wildlife Services, tracks the details of all bear deaths. Wildlife Services doesn’t have the facilities to keep bears, so it transfers some bears to FWP until their fate is decided. Wildlife Services doesn’t follow up because “once the damage has been resolved, Wildlife Services is done,” Perez said.
Perez said the plaintiffs’ demand for an environmental impact statement wasn’t valid because it wouldn’t change what’s happening to bears. She said the state of Montana kills more bears than Wildlife Services, and if Wildlife Services wasn’t allowed to do its job while complying with a court order, bears would still die at the hands of the state or producers themselves.
“The unintentional take could increase without Wildlife Services being able to address conflicts with livestock. While the state will try to address those conflicts, it will take time for them to get personnel trained,” Perez said. “The social tolerance could be diminished. Livestock producers can only tolerate so much damage of grizzly bears before taking matters into their own hands. The 1993 recovery plan does note the importance of controlling nuisance bears as part of conservation.”
Perez said Wildlife Services doesn’t track or provide information about bears killed outside recovery zones because those bears aren’t critical to population survival, according to the 1993 grizzly recovery plan. Perez said the Fish and Wildlife Service only calculates mortality limits for populations in the recovery areas so there’s no reason to track deaths outside the recovery areas.
However, she said no lethal removal occurred outside recovery areas between 2013 and 2017.
Christensen questioned Perez on why a single dispersing bear might not be important since biologists have said losing one female could be critical to the survival of the population in the Cabinet-Yaak recovery area. Perez said it was important within a recovery zone but outside the recovery zones “is the real dispute.”
“Plaintiffs want information about lethal removals outside the recovery zones. That boils down to a challenge to the Fish and Wildlife Service expertise on the proper measure of conservation. Because it’s the Fish and Wildlife Service that’s determined it’s the recovery zones that are the focus of conservation of grizzly bears,” Perez said.
Bishop said NEPA requires federal agencies to analyze the effects of their decisions, but by ignoring what it was doing to bears outside recovery areas, Wildlife Services failed to do that. Even inside the recovery areas, the environmental assessment didn’t really look at all that was happening to the population - it just counted bear deaths, Bishop said.
“In terms of recovery and conservation of grizzly bears, the most important bears are the ones that make the move and disperse between recovery zones. Establishing connectivity is the key to recovery, natural connectivity between recovery zones,” Bishop said. “There’s this space where no one is really analyzing the effects of grizzly bear mortality once they leave these areas and that’s what this case is about.”
Bishop said a more thorough analysis would stop Wildlife Services from killing as many grizzly bears and the state hasn’t said it would take over.
“A new analysis would really change how they approach this issue. I don’t think it’s just an adding-up-the-numbers game. If you look at the data and realize there’s a lot of bears being killed in certain areas where they’re trying to move into the Cabinet Yaak or the Bitterroot, patterns might emerge, and maybe Wildlife Services might make some changes,” Bishop said. “The Fish and Wildlife Service - they are in charge of recovery. But here, they have a very minor role: They just have to make the call before the kill. But it’s the Wildlife Services is the one who captures the bear.”
At the end of the hour-long hearing, Christensen said he would take the arguments under advisement and issue an order shortly.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.