Both sides of a legal dispute over grizzly bear and cattle conflicts in the Upper Green River drainage say an apparent appeals court win for wildlife advocates lacks teeth and will have no effect on contested grazing operations.
The case concerns the Upper Green River Cattlemen’s Association’s allotments on the Bridger-Teton National Forest — the most conflict-prone swath of the Greater Yellowstone Ecosystem. In 2019, federal wildlife officials greenlit the killing of up to 72 grizzly bears there over 10 years, saying that bear losses at that pace wouldn’t jeopardize the species, despite it being classified as threatened under the Endangered Species Act.
In late-May the U.S. 10th Circuit Court of Appeals ruled that the federal government violated the ESA by not capping female grizzly deaths and permitting activities that could contribute to a grizzly “mortality sink” and suppress the population.
Still, the remedies ordered by appellate judges Scott Matheson, Mary Beck Brisco and Nancy Moritz amount to some paperwork changes and will not influence day-to-day federal-land cattle grazing at the terminus of the historic Green River Drift, according to litigants from both sides of the dispute.
“It doesn’t really change anything for us as grazers,” Upper Green River Cattlemen’s Association President Coke Landers told WyoFile.
That’s true this year, he said, and in the future: “I don’t think it will [change grazing], really,” Landers said.
Although pro-grizzly groups issued a press release lauding their partial legal victory, some of the plaintiffs who brought the case agree with Landers’ assessment of the ruling’s impact.
“Everyone wants to put the smiley face spin on it,” Jonathan Ratner said, “but the reality is that heads they win, tails they win.”
Ratner, a Sublette County resident who works as the Wyoming director for the Western Watersheds Project, was particularly disappointed that the judges remanded the legally deficient decisions back to the U.S. Fish and Wildlife Service and U.S. Forest Service “without vacatur.” That’s legalese for allowing an action to remain in place, even while declaring it illegal.
Everyone wants to put the smiley face spin on it, but the reality is that heads they win, tails they win.”
Jonathan Ratner, western watersheds project
The 10th Circuit judges’ decision did not impose a timeline for the federal agencies to address deficiencies they identified.
“It’s essentially a carte blanche to violate the law,” Ratner said. “You can violate the law, you can get caught violating the law, and then you could continue doing it forever with the sanction of the court. It makes no sense whatsoever.”
A Bridger-Teton National Forest spokesman declined an interview for this story, citing ongoing litigation. The case, he said, would maintain that status, in the agency’s eyes, until the court’s concerns are remedied.
History of conflict
Since the 1990s the national forest rangeland in the Upper Green and Gros Ventre river watersheds have been hotspots for grizzly bear-cattle conflict. It’s a problem that has claimed the life of one adult male born to world-famous Grizzly 399 and also dozens of other members of the Ursus arctos horribilis clan that have developed a taste for the easy-to-catch domestic veal meals that are herded into the bruins’ home ranges each summer. Managing the conflict essentially amounts to a full-time job for the Wyoming Game and Fish Department carnivore biologist in the region when cattle are in the high country.
When the Bridger-Teton National Forest re-upped the 267-square-mile Upper Green River rangeland complex in 2019, two coalitions of environmental groups sued. Plaintiffs, which also included the Alliance for the Wild Rockies and Yellowstone to Uintas Connection, sought an injunction that would have kept cattle off the range and they lost. Later, the case was transferred from federal court in Washington, D.C. to the U.S. District Court of Wyoming.
About a year ago U.S. District Judge Nancy Freudenthal decided that the grazing plan for 8,772 cow-calf pairs and yearlings was unlikely to jeopardize grizzlies or the Kendall Warm Springs dace — another species protected by the federal Endangered Species Act. Afterward, five conservation groups appealed.
Appellate judges Matheson, Brisco and Moritz sided with the five plaintiffs on Fish and Wildlife Service’s failure to consider limiting the number of female grizzly bears that could be killed, declaring the omission “arbitrary and capricious.” The judges also ruled that the Forest Service failed to follow its own Forest Plan for the Upper Green, which is zoned to emphasize wildlife habitat, when it set its protections for migratory birds.
The state of Wyoming, Upper Green River Cattleman’s Association and individual ranchers intervened to join the federal government in the case, and that coalition won some arguments, too. The judges upheld the legality of conservation measures intended to reduce grizzly conflict that conservationists found too lenient, but the cattlemen supported. Among others, those measures included a recommendation that grazing permittees carry bear spray and a requirement that range riders keep an eye out for “sick, injured or stray animals.”
The panel of appellate judges also ruled in the defendants favor on a claim related to forage and cover for sensitive amphibian species.
What’s next
Landers, with Cattlemen’s Association, is anticipating normal business out on the range during the 2023 grazing season. That includes officials killing grizzlies caught preying on cattle — even sow bears.
“Even if you take three, four, five females out of that population … in our grazing allotment, I don’t think it’s going to have that big of an effect on the population,” he said.
Business-as-usual conflict management also includes nonlethal measures. Managers can relocate grizzlies, though moving bears has become less common in recent years than killing them. Upper Green range riders have also experimented with herding techniques to bunch cattle and they’ve even tried out motion-sensored LED ear tags meant to spook light-leery bruins.
The latter method, Landers said, seemed to work: Confirmed calves killed were in the sixties in 2022, down from an average in the nineties. He noted, however, that last summer was a good one for natural grizzly bear foods and that conflicts were down across the region. Funding ran out and the lighted ear tags are not being used again, he said.
Plaintiffs, meanwhile, have some decisions to make.
Ratner worries that the federal agencies involved could sit on the court-ordered Upper Green rangeland remedies — and not even bother changing documents related to allowable grizzly deaths — for as long as they please. That’s been the case, he said, in the aftermath of Mayo v. Jarvis, a case that concerned numbers of grizzly bears that could be “incidentally taken” as a result of Grand Teton National Park’s elk hunt. Those estimates are enumerated in documents called biological opinions.
“We’re in the identical situation of Mayo v. Jarvis, where the [biological opinion] was ruled illegal eight years ago and they’re still operating under the illegal [biological opinion],” Ratner said. “That’s the reality: They can ignore it with impunity.”
Andrea Zaccardi, an attorney who represented the Center for Biological Diversity in the suit, said there are some avenues for recourse.
“We’re looking at whether we can file a motion with the court to reconsider the remedy,” Zaccardi said. “Obviously they’re not going to vacate this decision, but maybe they’ll consider the remedy in terms of imposing a deadline.”
Meantime, she’s optimistic that Green River basin grizzlies could ultimately benefit from the ruling.
“I am hopeful that the Fish and Wildlife Service will seriously consider imposing a limit on how many female bears can be killed in their new analysis,” Zaccardi said. “They have to consider it, but my hope is that they’ll actually implement a limit.”
See Christopher Ketchum’s book: This Land – How Cowboys, Capitalism and Corruption are Ruining the American West. Less than 2% of American beef comes from public lands in the West. The elimination of grazing on public lands would result in the loss of 0.1% of the West’s employment. Yet the Federal government spends hundreds of millions each year to support grazing for fewer than 2,000 permit holders, most of whom rail for smaller government and with Biden in office, fear our slip into the evils of socialism. Why is their lifestyle subsidized when those who really need support are guilty of being beneficiaries of WELFARE?
The environgelic litigators dream come true that goes nowhere. Send more money!
Better to proselytize environmentalism and the protection and restoration of the eart we screwed up, than that crazy-ass spirit in the sky thing about having to die before everything’s going your particular way, with those particular, same-minded humanoids.
If they had left the horns on the cattle I’m pretty sure there would far less cattle killed by grizzlies.
No, just more horned skulls as markers on the landscape.
save grizzles, they were here first, listed as endangered and much more valuable than cheaper steak. Cattle are not native and a dime a dozen.
thats always my thoughts. If we remove cattle from an area, and decide we need cattle there, we can have more cattle there within a few hours. If we remove an endangered animal from an ecosystem, we cant do anything.