A federal appeals court overturned a decision by the U.S. Fish and Wildlife (USFWS) authorizing the lethal take of up to 72 grizzly bears over a 10-year period in the Bridger-Teton National Forest in Wyoming.
On May 25, the 10th Circuit Court of Appeals ruled partially in favor of environmental groups that argued a biological opinion (BiOp) issued by USFWS to the U.S. Forest Service (USFS) for grazing in the Upper Green River Area (UGRA) Rangeland Project violated the Endangered Species Act and National Forest Management Act (NFMA). The UGRA is located in the Bridger-Teton National Forest in western Wyoming and within the Greater Yellowstone Ecosystem (GYE).
Each year, ranchers move their herds from high desert mesas in the south to the Bridger-Teton National Forest via the Green River Drift trail, a 68-mile path listed as a “traditional cultural property” on the National Register of Historic Places.
In 2019, USFWS issued a BiOp on the effects of grazing on the grizzly bear and found grazing would likely not jeopardize the recovery of the species. USFWS subsequently issued an incidental take permit to ranchers with many terms and conditions to ensure that the action would not lead to jeopardy of the species.
Litigation
The Center for Biological Diversity, Sierra Club, Western Watersheds Project, Alliance for the Wild Rockies and Yellowstone to Uintas Connection filed two separate suits on March 31, 2020, challenging the agencies’ decisions to take the bears. U.S. District Judge Nancy D. Freudenthal for the District of Wyoming ruled against environmental groups in 2022 and the groups appealed.
In late May, the appeals court ruled the BiOp failed to consider a limit on the lethal take and to account for the project’s contribution to the already-existing mortality sink for female grizzly bears. The judges also ruled the USFS’ reliance on the BiOp was arbitrary and capricious.
The judges further determined the BiOp did not fail to consider anticipated lethal take elsewhere in the GYE adequately and that conservation measures were not arbitrary and capricious.
The court was split about claims that the record of decision violated the NFMA and remanded the matter without vacatur to the agencies to address the deficiencies identified in the judges’ opinion.
Grazing implications
There are six cattle and horse grazing allotments in the project area for approximately 8,819 livestock, including 8,772 cow-calf pairs and yearlings and 47 horses that graze in the six allotments from June 14 to Oct. 15.
The state of Wyoming, Upper Green River Cattle Association, Sommers Ranch LLC, Price Cattle Ranch, Murdoch Land and Livestock Co and Wyoming Stockgrowers Association highlighted the consequences that vacatur would have on the grazing cycle, the ability to produce hay and on the permittees and the community.
Joseph Bingham, an attorney with the Mountain States Legal Foundation, asked the court to keep the grazing permits in place should the court decide to remand the case.
Reactions
The environmental groups were pleased with the decision to remand the matter back to the agencies, and they plan to look at protecting female grizzly bears that inhabit UGRA.
“We’re hopeful that in reconsidering their flawed analysis, the agencies will spare dozens of female grizzly bears previously sentenced to death by the Trump administration,” said Andrea Zaccardi, legal director of the Center for Biological Diversity’s carnivore conservation program. “This ruling confirms that federal officials can’t sidestep the law to allow grizzly bears to be killed on public lands to appease the livestock industry.”
Western Watershed Project’s Wyoming office director Jonathan Ratner told Courthouse News Service the UGRA is being treated like a feedlot and chuckled when asked if the case’s revival was a victory.
“The remand without vacatur means you can continue violating the law with impunity,” Ratner said. “The government is still allowing private individuals running private livestock on public lands to kill endangered species in an area that is zoned to be protected. It’s insane.”
Ivan London, senior attorney with Mountain States Legal Foundation, told WLJ, “While we have some disagreements with the 10th Circuit’s findings, we are pleased that the court found in favor of our clients’ interests on several items, and that it is giving the agencies opportunities to fix the specific issues that it found unreasonable.” — Charles Wallace, WLJ editor
