The Russell Smith Federal Courthouse. (Tommy Martino, for the Daily Montanan)
A formal document that reviews impacts to the environment is supposed to be readable and relatively short — but federal Judge Kathleen DeSoto wondered if one related to grizzly bears might be too short.
“How concise is too concise?” DeSoto asked Tuesday.
In a lawsuit filed against the chief of the U.S. Forest Service, a coalition of conservation groups led by the Western Watersheds Project argues the government failed to consider the effects of expanded cattle grazing north of Yellowstone National Park on grizzlies.
The groups allege an additional 1,356 acres for cows and a longer season with young calves will lead to even more grizzly bear deaths for a population seeing more threats and a significant increase in mortality — and not enough whitebark pine seeds or trout to eat.
In court, a lawyer for the conservation groups, Matthew Bishop, said the Forest Service’s analysis of impacts was so cursory, it should at the very least be redone: “We heard more today on connectivity (for grizzly bears) than what’s in the record.”
But Bishop also requested the judge order the Forest Service do a full environmental impact statement — more than the environmental assessment it had completed, although not to standards in the National Environmental Policy Act, the groups allege.
“This is the very first time that the Forest Service has ever conducted a NEPA analysis for these allotments,” said Bishop, and he said it fell short.
The Forest Service, however, said the project, in the Custer-Gallatin National Forest, doesn’t increase grazing at all; grazing is counted by land units where cattle can forage, and some land is too steep or rocky to be grazed, the government said.
Rather, the government argued the decision about grazing is a continuation of management that has already been conducted just east of the Paradise Valley for roughly a century.
In court, lawyer Krystal-Rose Perez, on behalf of the Forest Service, said all the information that went into the government’s decision for those six allotments was open to the public; it was available in the form of supporting documents, even if it wasn’t in the environmental assessment itself.
She also said the agency responded to questions from the public in its environmental assessment, and it accounted for issues such as connectivity in its final decision. For example, Perez said, bears do have a connection from the Greater Yellowstone Ecosystem to the Bitterroot Ecosystem, it’s just north of the project.
As such, the government asked the judge for summary judgment in its favor. Perez said the conservation groups failed to make the case the Forest Service violated federal law, and contrary to allegations, it properly considered impacts on grizzlies.
“In this ecosystem, grizzly bears thrive,” Perez said.
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During arguments in court, DeSoto asked the lawyers about omissions in the Forest Service’s environmental assessment, such as potential impacts on private land; differences in the parties’ ideas of “baseline” information about grizzly bears; and whether the court could consider information from a scientist without veering outside the bounds of the lawsuit.
The lawsuit notes six allotments in question, in portions of the Absaroka-Beartooth Wilderness, North Absaroka Roadless Area, and in the Greater Yellowstone Ecosystem recovery zone for grizzly bears.
According to the conservation groups, the Forest Service expanded grazing on three allotments, and it kept three vacant for the time being, but available “at the agency’s discretion” for future grazing.
On behalf of the conservation groups, Bishop, with the Western Environmental Law Center, told the judge the Forest Service didn’t take into account a “significant escalation” in human-caused grizzly bear mortality in its decision.
The lawsuit counted an average of eight deaths a year from 1992 to 2000 to an “unprecedented” 85 in 2021 in the Greater Yellowstone Ecosystem, including 20 due to livestock.
“There is no dispute that a spike in grizzly bear mortality is happening,” Bishop said.
The judge, however, said the concepts the conservation groups and government held about “baseline” numbers were like “ships passing in the night,” although she said she didn’t consider either wrong.
(The conservation groups consider the “baseline” a snapshot of conditions on the ground for grizzly bears. The government, however, refers to a “1998 baseline” as part of a 2007 forest plan conservation strategy; it called for at least maintaining conditions from 1998.)
The judge also wanted to know if the conservation groups had evidence of grizzly bear attacks on cattle in the allotments in question.
Bishop said the Forest Service would argue the answer is no, but he said “the past isn’t prologue.” In this case, he said, it’s the first time in more than 20 years there’s been an increase in grazing inside a recovery zone.
“That’s an expansion of grazing in an area where we now have more bears,” Bishop said.
Plus, he said, the Forest Service’s decision to allow an earlier grazing season with younger, vulnerable calves “virtually guarantees” more attacks; because of their size, calves account for almost all grizzly bear cattle victims, the conservation groups argue.
In his argument, Bishop also said the Forest Service’s assessment completely omits the issue of connectivity for bears between ecosystems, “a major oversight.”
He also said the Forest Service tells the public in one document that its decision won’t have cumulative impacts on grizzlies from things like more development and grazing on private land, but in another, it outlines those impacts — the definition of “arbitrary and capricious,” he said.
Perez, however, said the Forest Service provided different information in those separate documents because they each speak to different standards and statutes.
In general, she said, the Forest Service’s revised plan for those six allotments made only “minor changes” after the government took the “hard look” required by law, including analyzing factors such as mineral development and recreation.
Perez argued federal law does not require “baseline” conditions be established. However, the judge said the Forest Service needs to have an understanding of the situation on the ground and also remove blinders to make sure new projects won’t have additional impacts.
The judge wanted to know if the Forest Service shouldn’t include depredation, or attacks on livestock, on areas around the allotments, not just on the allotments. Perez said those were included in a supporting document, a biological assessment.
Perez also said the allotments in question had seen no attacks in five years. Additionally, she said, the Forest Service had not allowed more grazing, although DeSoto asked how starting grazing earlier in the year would affect younger calves.
The Forest Service considered the longer season, Perez said; it already has an earlier grazing season on one parcel, and it considered the potential for increased risks of conflicts as a result, and the government concluded it would not lead to more attacks.
DeSoto, though, had questions about the lack of information in the environmental assessment. The judge said she knows those documents are supposed to be brief and also digestible to the public, but she said the idea of connectivity wasn’t mentioned at all.
So the judge wanted to know how the public was supposed to know the Forest Service considered it. Perez, though, said it made sense the document didn’t mention connectivity because impacts on connectivity from the allotments were so limited.
In other words, Perez said, the scope of grazing is limited, and therefore, the impacts to grizzly bears are limited as well.
If the judge vacates the Forest Service’s decision, Perez said, some of its benefits, such as more protection for whitebark pine, won’t be realized either. Bishop, however, argued the judge could vacate just part of the decision, and also order a full environmental review.
The other plaintiffs in the lawsuit are the Alliance for the Wild Rockies, the Native Ecosystems Council, the Center for Biological Diversity, the Wyoming Wildlife Advocates, the Sierra Club, Friends of the Bitterroot, Wildearth Guardians, and the Gallatin Wildlife Association.