The Mountain States Legal Foundation (MSLF) filed a motion to intervene in a lawsuit filed by environmental groups earlier in May seeking to protect grizzly bears in the Upper Green River Valley.
MSLF filed the motion to defend “the rights of American ranchers to access federal land as they have for generations and to protect the legacy of the people who built the West.”
The MSLF filed the intervention on behalf of Upper Green River Cattle Association, Sommers Ranch, LLC, Price Cattle Ranch, Murdoch Land and Livestock Co., and Wyoming Stock Growers Association.
The case, Western Watersheds Project et al. v. Bernhardt et al., was filed in the Federal District Court of Washington, D.C. against Secretary of the Interior David Bernhardt, the U.S. Fish and Wildlife Service (USFWS) and U.S. Forest Service by Western Watersheds Project, Alliance for the Rockies and Yellowstone to Uintas Connection.
At issue, in this case, is the ranchers’ use of the Upper Green River cattle allotment located on the Bridger-Teton National Forest in Wyoming. The Upper Green River cattle allotment is accessed using the Green River Drift and Green River Drift Trail, which is the oldest continually used traditional cattle drive in the state of Wyoming, and perhaps the U.S.
“These families have cared for the land far longer and far better than any agency or activist has,” said Brian Gregg, MSLF’s lead attorney. “The Green River Drift provides 124 years of evidence that ranchers are the real conservationists.”
The Upper Green River Drift is mostly unchanged since the 1800s and is a living connection to the West’s ranching history. Because it is so unique, the Upper Green River Drift is listed as a “traditional cultural property” on the National Register of Historic Places—the first ranching-related entity to be so recognized.
The Drift is “representative of a rural community’s land-use patterns and reflects the local ranchers’ traditional occupational culture, including shared practices, customs, and beliefs.” It is the oldest continually used stock drive trail in Wyoming and is one of the only remaining cattle trails still in use in the same manner in which it was initially developed.
The Green River Drift Trail extends for 68 miles, from high desert mesas in the southern part of the county to the Bridger-Teton National Forest in the northern part of the county. The Drift path makes use of natural features such as draws and creeks to funnel the cattle onto a common path and provide a stable supply of water and feed.
The Drift follows the Green and New Fork Rivers for much of its route and has the Wind River Mountains as its backdrop to the north and east, the Wyoming Range in the far distance to the west, and the Gras Venture Mountains to the north.
The Green River Drift Trail provides the route for Upper Green River Cattle Association members and other area ranchers to trail cattle from spring grazing at the southern end of the Drift to summer and fall grazing at the northern end. In the fall, the cattle “drift” back to the south on their own back along the route of the Drift and are then sorted and trailed to their home ranches.
Two biological opinions
Two biological opinions (BiOps) issued according to Section 7 of the Endangered Species Act (ESA) are central to the plaintiffs’ challenges.
First, on April 29, 2019, FWS issued a BiOp in which it found that renewing these grazing allotments was not likely to jeopardize the recovery of the grizzly bear, and authorized the take of up to 72 grizzlies over the 10-year project term (2019–2028). The incidental take statement (ITS) associated with this BiOp included many terms and conditions to protect the long-term viability of grizzly and to ensure that the action would not lead to jeopardy.
The second BiOp, dated Sept. 3, 2014, amended an earlier biological opinion providing an ITS concerning the authorized lethal removal of nuisance grizzly bears associated with the previous Upper Green River Area Rangeland Project authorization.
Ranchers and other Upper Green River Valley ranchers had operated under the terms of the 2014 BiOp for nearly five years. During this time, the grizzly bear population in the Greater Yellowstone Ecosystem continued to increase.
Plaintiffs have focused their challenge to the 2019 BiOp on a single claim: “USFWS failed to consider the distinction between female and male grizzly bears potentially lethally removed from the project area.”
According to Plaintiffs, this failure to differentiate between female and male grizzly bear takings renders the 2019 BiOp arbitrary and unaccountable, and in violation of Section 7 of the ESA. In the final environmental impact statement, the agencies discuss whether the removal of female grizzly bears would “significantly and negatively affect grizzly bear population growth.”
Historically, female grizzly bears represent a smaller proportion of total removals. Between 2010 and 2014, only four of 14 grizzly bears removed from the project area were female.
Lethal removals of grizzly bears are only utilized as a last resort after other, nonlethal means have failed to change a nuisance bear’s behavior.
MSLF argues, “the loss of the ability to conduct lethal removals of nuisance grizzly bears on the Upper Green River cattle allotment could result in association members being unable to utilize their grazing permits due to the increased risk of bear depredation and a threat to human safety for the association’s range riders.”
The limited lethal removals of nuisance grizzly bears have been occurring within the Upper Green River Area Rangeland Project Area since at least 1999, with no apparent impact on population growth of grizzly bears within the Greater Yellowstone Ecosystem.
A threat to the livelihood
MSLF in their opposition to the injunction states, “The Upper Green River cattle allotment accounts for all of the forage needed for the members’ herds during an exceedingly critical time when calves are raised to market weight. Accordingly, association members can’t secure alternative forage, and these members would be forced to reduce their herd size to an uneconomically viable level, likely at a significantly reduced price.”
The resulting economic losses would force many of the association’s members’ ranches to go out of business. Further, should ranchers’ operations and historic grazing practices be diminished or eliminated, migration routes and other important wildlife habitats would be affected.
Any impacts resulting from the removal of a small number of dangerous, nuisance grizzly bears do not outweigh the millions of dollars at stake annually, and the ongoing viability of their cattle operations, should ranchers be prohibited from the use of the Upper Green River allotment, the group alleged.
The opposition to the injunction concluded, “Plaintiffs completely ignore the fact that the grizzly bear population in the Greater Yellowstone Ecosystem has recovered. Beginning in 2005 and continuing each year since, the Greater Yellowstone Ecosystem population of the grizzly bear has met the criteria for recovery set in its recovery plan.”
Should an injunction be issued by the courts, MSLF is asking for a large bond paid by the plaintiffs to cover the estimated $3-5 million lost per year by ranchers on the sale of their cattle. — Charles Wallace, WLJ correspondent