Grizzly bear (Courtesy of the United States Fish and Wildlife Service).
A federal judge on Nov. 7 told a government agency that while it can continue its practice of capturing and occasionally killing endangered grizzly bears in Montana, the agency must conduct a thorough analysis of how the program will impact the state’s bear population after finding it violated the National Environmental Policy Act.
In a legal dispute that began in May 2021 when a coalition of environmental and wildlife groups sued the U.S. Department of Agriculture’s Wildlife Services over a decision reauthorizing a predator damage and conflict management program in Montana, U.S. federal judge Dana Christensen last week issued a 50-page order that favored the plaintiffs’ claims. The court order states that an environmental assessment prepared by Wildlife Services failed to include critical information about grizzly population connectivity and consider the impact of the program on the state’s grizzly bear population, a violation of NEPA.
The agency is required to complete a full Environmental Impact Statement within a year.
“In sum, because critical information was omitted from the EA, and much of the evidence before the agency was ‘too stale to carry the weight assigned to it,’ Wildlife Services could not have made ‘a reasoned decision based on its evaluation of the evidence,’” Judge Christensen wrote. “Ultimately, Plaintiffs are correct that the EA failed to take a ‘hard look’ at the effects of Montana’s predator damage and conflict management program on grizzly bears and an EIS is required.”
WildEarth Guardians, Western Watersheds Project and Trap Free Montana, who brought the lawsuit against Wildlife Services, argued that the agency’s assessment lacked specific information about the sex and location of captured and killed bears, and failed to examine how killing grizzly bears could affect the animals’ connectivity between the state’s designated recovery zones.
Wildlife Services, a division of the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service, addresses conflicts between predators and livestock. Working with the U.S. Fish and Wildlife Service and Montana Fish, Wildlife and Parks, problematic predators, including grizzly bears, can be removed from a location of conflict through nonlethal or lethal methods.
For grizzly bears, which gained federal protection under the Endangered Species Act in 1975, this is an exception to the prohibition on “taking” protected species. Under a special rule developed by USFWS, grizzlies can be lethally removed for specific circumstances including self-defense, defense of others, or in response to significant livestock depredations.
In the environmental assessment supporting the predator conflict management program, Wildlife Services stated that the number of complaints related to problems between bears and livestock were increasing, jumping from 25 in 2013 to 157 in 2019. In that year, livestock conflicts resulted in the capture of 16 grizzlies, including one lethal removal.
However, the environmental analysis relied on a 2012 biological opinion issued by USFWS, which the plaintiffs said contains outdated information, to determine that the program “is not adversely impacting the population.” In addition, the analysis lacked specific information about the number of bears killed, their sex and location of capture, which the plaintiffs argued is critical to understanding the impacts of the overall program on the recovering species.
Montana is home to several regional ecosystems and recovery units that support populations of threatened grizzly bears. The largest populations of grizzlies exist in the Greater Yellowstone Ecosystem and the Northern Continental Divide Ecosystem, while a small population lives in the Cabinet-Yaak. An additional recovery area in the Selway-Bitterroot has no known resident bears, but grizzlies have been spotted in the ecosystem.
A key part of the species’ recovery is predicated on having enough genetic diversity in a region, which is naturally maintained by bears traveling between recovery zones. The environmental assessment completed by Wildlife Services contained only minimal discussion about the effects of lethally removing grizzly bears due to conflicts outside of a recovery zone. Even the U.S. Fish and Wildlife Service, the federal agency in charge of the grizzly recovery program, requested additional analysis for grizzlies taken anywhere in Montana, especially in between the identified recovery ecosystems, when the draft EA went out for public comment.
“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,” attorney Matthew Bishop, representing the plaintiffs, said during a hearing before Christensen on Aug. 2. “There’s sort of this space where no one’s really analyzing the effects of grizzly bear mortality once they leave these areas. And that’s what this case is about.”
During the hearing, Bishop requested Christensen declare that Wildlife Services violated NEPA and call for a new analysis of the predator removal plan with a “robust” environmental impact statement.
Arguing on behalf of the federal agency, Krystal-Rose Perez said the judge shouldn’t put a stop to the killings because lethal removal only occurs after livestock managers have exhausted other methods of keeping animals safe, and tying the hands of the federal agency would make it more likely for livestock producers to take matter into their own hands. She also argued that under the federal management plan for the species, the critical habitat for grizzlies — the recovery zones — is clearly identified, and areas outside the recovery zones aren’t considered “necessary for survival and recovery.”
However, in his order Christensen agreed with the plaintiffs that “grizzly bears taken outside or in-between recovery zones — particularly if they are female — are arguably the most important bears because they are critical to establishing natural connectivity, an essential component to species recovery in certain ecosystems and necessary for long-term genetic viability in all isolated grizzly bear populations in the lower-48 states.”
Christensen’s order does not vacate the existing decision by Wildlife Services and allows the agency to continue operating the predator damage and conflict management program as is. However, the agency is required to complete the NEPA process, including an environmental impact statement, by Nov. 1, 2026.
In a statement to the Daily Montanan, WildEarth Guardians attorney Lizzy Pennock said while the organization is happy with the ruling, the fight for grizzly bear recovery isn’t over.
“Grizzly bears need all the help they can get right now, not more ‘tools in the toolbox’ for killing them,” Pennock said. “This decision recognizes that USDA Wildlife Services failed to adequately consider the impacts on grizzly bear recovery from their ‘predator removal program.’ Our team is considering options for further relief for grizzlies while the agency complies with the law,”