Montana federal judge hears arguments about grizzly killings

A female grizzly sow with two cubs (Photo courtesy of Glenn Phillips via www.glennphillipsphoto.com. | Used with permission).

If a grizzly bear gets killed outside a designated “recovery zone” as opposed to inside, does it matter?

Conservation groups and federal agencies debated in U.S.District Court in Missoula on Friday whether bears that are killed outside the recovery zone should be considered in management plans, not just counted.

They also debated whether the U.S. Department of Agriculture’s Wildlife Services did a thorough enough review when it issued a plan for “removing” predators, including grizzly bears that create problems for livestock in Montana.

Removing animals can include killing them. Wildlife Services removes predators in 38 counties where grizzly bears may be present, according to a court filing.

Attorney Matthew Bishop, on behalf of groups that sued the government, including WildEarth Guardians, argued the effects of grizzly bear deaths in the spaces between “recovery zones” are important, but they’re being ignored by the government.

“In some ways, the most important bears are not the ones that stay in Yellowstone or Glacier, but they’re the ones that actually make the move and disperse between recovery zones,” said Bishop, with the Western Environmental Law Center.

Establishing connections between those zones is important, he said.

“But there’s sort of this space where no one’s really analyzing the effects of grizzly bear mortality once they leave these areas,” Bishop said. “And that’s what this case is about.”

In Montana, he said, Wildlife Services takes the lead in responding to conflicts between grizzly bears and livestock.

As such, he requested federal Judge Dana Christensen declare the federal agency violated the National Environmental Policy Act and call for a new analysis for its predator removal plan that includes a thorough review — a “robust” environmental impact statement.

On behalf of the federal government, however, lawyer Krystal-Rose Perez said Wildlife Services of the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service is simply responding to conflicts between grizzly bears and livestock. She said it’s another agency, the U.S. Fish and Wildlife Service, that authorizes removals.

In addressing conflicts, the federal government works with the state Department of Fish, Wildlife and Parks, and it kills problem bears only if nonlethal methods fail, and with consent from Fish and Wildlife Service, she said.

Additionally, Perez said, if a “lethal removal” takes place by a third party, such as the state, or an unintentional “take” by a livestock producer, it isn’t the federal government’s fault, and those third parties aren’t part of the lawsuit.

Perez also said the U.S. Fish and Wildlife Service has determined the critical areas for grizzly bears — the recovery zones, such as the Cabinet-Yaak, Bitterroot, Northern Continental Divide and Greater Yellowstone.

As such, she said, some places aren’t critical.

“Areas outside of the recovery zone may provide habitat, but … it’s not considered necessary for survival and recovery,” Perez said.

She also said it’s difficult to conduct an analysis of the effects of grizzly bear deaths outside the recovery zones because baseline information isn’t available.

During the lawyers’ arguments, however, Judge Christensen asked questions about data that would be available to the Wildlife Services about grizzly bears.

He also asked both parties to weigh in on which regulations would apply if he sent the case back to the agency, and whether a judge in Idaho had tossed out an entire environmental assessment in another similar case.

In the Idaho case, Bishop said he believed the judge undid the environmental review, but he said the request from his clients is “more narrowly tailored.” The groups are asking to stop lethal removals unless they’re needed to protect human safety, and to stop the use of some traps, snares and toxins when bears aren’t in their dens.

Other plaintiffs are the Western Watersheds Project and Trap Free Montana, both nonprofits.

In response to the judge’s question about whether Wildlife Services conducts removals outside of the recovery zones and requires consent of the U.S. Fish and Wildlife Service, Perez agreed it does.

She said it has to respond to conflicts, but she said it doesn’t “disclose removals” because there’s no information outside of the recovery zones that can be used as a comparison point.

However, in response to the judge, Perez agreed the other federal agency would have information about bears “taken” outside a recovery zone.

She also agreed the state would have information about bears the federal agency sometimes transfers to the Montana FWP — the plaintiffs said it isn’t clear what happens to the animals once they’re transferred, including whether they’re killed.

However, Perez also said the Wildlife Services’ responsibility is over at that point.

“Once the damage has been resolved, then Wildlife Services’ role is done because Wildlife Services is focused on predator damage management, not caring for or conserving the grizzly bears,” Perez said.

Christensen wanted to know if the Wildlife Service had ever “taken” a bear outside a recovery zone that was moving from one zone to another, but Perez said she didn’t have that information.

The judge also wondered if the federal government disputed the plaintiffs’ position that even one single bear could be critical to the population in a recovery zone. Perez said within the recovery zone, a single bear is important.

“But it’s outside of the recovery zones that is the real dispute here,” Perez said.

And she argued the federal agency is the expert in the matter, which is why it had drawn boundaries to indicate where the bears are critical.

What the plaintiffs really want, Perez said, is for the federal agency to stop “lethal removal,” but she argued the judge shouldn’t temporarily stop the killings because they come only after livestock managers have tried other methods of keeping animals safe.

Additionally, she said, tying the hands of the federal agency when it comes to lethal removals would mean livestock producers take matters into their own hands instead of calling on the agency for help.

“The public has an interest in protecting livestock from predator damage,” Perez said.

Bishop, however, argued the public has an interest in being certain the government is making informed decisions. And in this case, he said, the Wildlife Service has largely operated “in a black box” without a lot of oversight.

It’s also working with agencies that aren’t subject to the National Environmental Policy Act, he said.

So bears are being captured and killed throughout western Montana, but the public doesn’t have any details, nor has the federal government analyzed how its actions are affecting grizzly bears or connectivity, he said.

“It doesn’t even know if it is taking bears on their way into places that are important for recovery, like the Cabinet Yaak or the Bitterroot,” Bishop said.

To comply with the law, he said, Wildlife Services needs to do a thorough analysis of the effects of “predator removal,” including looking at where grizzlies are captured, their sex and age, and why they’re being taken.

The information is available, he said, but it wasn’t included in the environmental assessment, the less thorough review the agency relied on for its predator removal plan. And he said the full data should be considered.

“This is really the only opportunity, really 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,” Bishop said.