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Judge: No evidence of ‘certain and great harm’ to grizzlies

By , WyoFile

A judge shared his reasoning Friday on why he refused to halt the killing of grizzly bears, killings that protect a historic Wyoming cattle drive and ranching operation on the Bridger-Teton National Forest.

Conservation organizations presented no evidence wildlife managers will remove more female cattle-eating grizzlies from federal Sublette County grazing allotments if he doesn’t immediately step in, U.S. District Judge Amit P Mehta said.

Cowboys and –girls drove hundreds of cattle on the Green River Drift last week under a new federal 10-year plan that allows the killing of up to 72 grizzly bears over that period.

The conservation groups sued the U.S. Secretary of the Interior and others claiming the grazing plan violated the Endangered Species Act, among other laws, in part because it did not limit the removal or killing of female grizzly bears. Protected by the ESA, female grizzlies are a key component of the Yellowstone ecosystem population in question. The conservation groups sought an injunction to immediately stop the killings and removals.

But the nonprofits Western Watersheds Project, Yellowstone to Uintas Connection, and Alliance for the Wild Rockies “have not offered evidence of a ‘certain and great’ harm that is ‘likely to occur,’” while the case wends its way through court, Mehta wrote. In past years, an average of 0.7 female grizzly bears a year have been removed from the Upper Green River grazing area, the judge wrote. That suggests “the taking of more than one or two female bears during the pendency of this case is unlikely to occur.”

The conservationists did not convince the judge “that the killing of a single member of a threatened species constitutes irreparable harm, especially where, as here, the grizzly bear population has been growing for years,” Mehta wrote.

Western Watersheds Project said in a Facebook post that “Justice for grizzly bears in the Upper Green will have to wait for another day. Our lawsuit will now proceed toward a ruling on the merits.”

Other safeguards in place

In reaching his conclusion, Mehta wrote that wildlife managers have several safeguards to ensure that the removal or death of female grizzlies to protect livestock does not endanger the Yellowstone Ecosystem population of an estimated 728 bears. “The lethal taking of a nuisance bear is a last resort,” Mehta wrote, “and there are many checks in the process to ensure that the killing of such a bear, especially a female, cannot be a sudden or spur-of-the-moment decision.”

Among the alternatives are trapping and relocating a suspected cattle-eating grizzly.

A rider and cattle from the Sommers Ranch move down a ridge on the Green River Drift route on June 17, 2020. The ranch runs a traditional cow-calf breeding and rearing operation. (Angus M. Thuermer, Jr./WyoFile)

Western Watersheds and its allies wanted urgent action but were not urgent in their judicial appeal, Mehta also wrote. The plaintiffs waited more than three months before giving the government a required notice they were going to sue, Mehta wrote. That delay undermined arguments that the grazing plan required emergency intervention, he wrote.

The federal grazing permit, authorized in 2019, allows ranchers to herd up to almost 18,000 cattle, about 9,000 cow-calf pairs, onto the Bridger-Teton National Forest above the Green River. The U.S. Fish and Wildlife Service decided the plan posed no jeopardy to the continued existence of the Yellowstone Ecosystem grizzly.

In doing so, the federal wildlife agency bound the Forest Service to terms and conditions that call for a reassessment of operations should grizzly deaths exceed certain parameters. Ecosystem-wide, for example, Fish and Wildlife Service set the threshold for female grizzly mortality at 9% of the population.

But the Forest Service did not engage in “formal consultation” with FWS about the Kendall Warm Springs Dace, an endangered fish species whose only home on the planet is 984 feet of the 85-degree Kendall Warm Springs. A tributary of the Green River on the Bridger-Teton National Forest, the warm springs lie across the path of the Green River Drift.

Although grazing cattle are fenced out, cattle in the drift can pass through the 160-acre exclosure. That prospect alarmed the conservation groups who said the bovid herds would trammel the sensitive environment of the two-inch-long dace.

Ranchers agreed to either trail herds around the exclosure or truck them through, according to Mehta’s 31-page June 19 order. He rejected conservationists’ request for a “just-in-case” Warm-Springs-Dace injunction because “there is no additional relief that the court can grant.”

Deaths sadden grizzly advocate

Despite the ultimate ruling, Mehta found in favor of Western Watersheds and its co-plaintiffs on many points, but not enough to merit a preliminary injunction. Western Watersheds and others, for example, have skin in the game, he ruled, citing a declaration by Jason Christensen, the director of Yellowstone to Uintas Connection.

“Christensen states that he has ‘been camping, hiking and fishing in the Upper Green River area for 33 years,’ and that his ‘favorite aspect of being in the Upper Green River area is looking for and viewing grizzly bears,’” the judge wrote. Christensen also has a “deep spiritual connection to the area and to the wildlife, including grizzly bears, that live in the Upper Green River area,” the judge’s order reads.

A herder pushes cattle through a squall along the Green River Drift route on June 17, 2020. (Angus M. Thuermer, Jr./WyoFile)

“Every time he ‘learn[s] about a grizzly bear death due to livestock conflicts on the Upper Green River area, [he is] saddened,’” Mehta’s opinion reads.

Ranchers contended Christensen’s legally protected interests lie in the species, not specific animals. That argument didn’t sway the judge who sided with Christensen’s claim of injury to his “concrete aesthetic and recreational interests.”

In their own declarations, ranchers contended that the failure to remove so-called nuisance grizzlies would doom them economically. Yellowstone grizzly population has grown since the 1980s or so and bears began troubling Upper Green River stockmen in the 1990s.

Not protecting their stock from grizzlies would render the grazing lands unusable, ranchers contend. That would result in a cascade of consequences for ranchers and wildlife, the stock growers said.

“It is my opinion that, without the Upper Green River Cattle Allotment, many of these ranches would be sold, and, undoubtedly, some would be subdivided,” Albert Sommers, one of the members of the Green River Drift, wrote in a declaration. “Should the members’ ranching operations and historic grazing practices be diminished or eliminated, large ungulate migration routes and other important wildlife habitats would be affected,” he wrote.

The Green River Drift is on the National Register of Historic Places. The route to the 170,000 acres of federal summer grazing lands covers about 58 miles between Cora and the community of Kendall. Cattle reverse the route in the fall and those that are not sold spend winter on home ranches around Pinedale.

The Wyoming Game and Fish Department compensates ranchers for wildlife damage, including for cattle killed by grizzly bears, considered a trophy game animal. In FY 2020, which ends June 30th, the department has so far paid Upper Green River grazers $125,881 for 17 individual claims of losses to grizzly bears or wolves, according to information supplied by the agency.

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