Ranchers: Grizzly suit imperils rights, wildlife migrations

CORA — Sublette County ranchers say a suit challenging their Forest Service grazing permit — a 10-year arrangement that authorizes the killing of 72 grizzly bears — could violate their rights, run them out of business, and lead to a host of negative environmental impacts.

Ranchers’ operations would be so disrupted if grizzlies are not killed that some operations could fail, leading to a cascade of environmental and social disruption, according to declarations filed in a Washington, D.C. court last week. Albert Sommers, Robert Price and Margaret Lockwood, members of the Upper Green River Cattle Association, outlined their views of potential consequences of the lawsuit, including subdivision of open space and development that would disrupt Wyoming’s iconic wildlife migrations.

Western Watersheds Project, the Alliance for the Wild Rockies and Yellowstone to Uintas Connection filed the suit March 31. It names the Secretary of the Interior, the U.S. Forest Service and the U.S. Fish and Wildlife Service as defendants. Plaintiffs claimed agencies violated federal law when they failed to properly address grazing’s effects on federally protected grizzly bears and the endangered Kendall Warm Springs dace — a small fish.

The environmental groups seek immediate court action to prevent injury to bears and the dace this gazing season. The world’s population of the small fish lives in only 984 feet of the 85-degree Kendall Warm Springs, a tributary of the Green River on the Bridger-Teton National Forest. 

The Forest Service last October approved a grazing permit that allows cowboys and girls to each year drive almost 9,000 cattle through the warm springs area where fences otherwise keep cattle from grazing.

The annual 58-mile Green River Drift cattle drive is the only “traditional cultural property” associated with ranching that’s on the National Register of Historic Places, attorney Brian Gregg, who is representing three ranchers involved, told WyoFile. 

“It’s going to be very interesting,” he said, “whether an alleged violation of the Endangered Species Act can trump national designation,” of historic places. 

Grizzly bears the focus

“This is solely about grizzly bears for us,” Gregg said, calling the suit “another front in the war” over removing federal protections from the Yellowstone population of bears.

“We believe they should be delisted,” Gregg said of Yellowstone-area grizzlies. “We believe it is necessary to continue lethal take,” referring to the selected killing of stock-eating bears.

The permit allows ranchers to graze livestock on the forest during summer and fall in the Upper Green River drainage in Sublette County near Union Pass. The permit authorizes almost 9,000 cattle, or that many pairs of cows and calves, under Forest Service rules. The area is habitat for Yellowstone Ecosystem grizzly bears.

Officially, 728 grizzly bears occupy the entire sprawling ecosystem, a number that qualifies them for removal from federal protection, the state of Wyoming and stock growers have argued. Grizzlies’ population growth has forced bears out of their core Yellowstone National Park habitat into fringe areas where they attack, kill and eat stock, they say.

But the suit claims grizzly numbers are flat and that a dramatic jump in conflicts in the Upper Green River area coincides instead with the trend in loss of whitebark pines nuts, a key grizzly food. In other areas around Yellowstone where whitebark pine is in decline due to climate change, grizzlies have replaced pine nuts with army cutworm moths that they uncover in talus slopes, the suit says.

But there are no talus slopes with moth sites accessible to grizzlies at Union Pass, according to the conservationists’ complaint. Bears are not expanding their range and killing cattle because there are more bears, the suit claims. Instead, they eat cattle because there’s no alternative to whitebark pine nuts.

Further, though the Forest Service and Fish and Wildlife Service authorized killing up to 72 bears in the 10-year grazing period, the agencies set no limit on how many of those are female, the suit says. Female numbers are critical to the persistence of the species in the ecosystem, biologists say.

Despite the decrease in whitebark pine, the lack of army cutworm moths and U.S. Forest Service’s recognition that the …  area is a “mortality sink” for female grizzly bears, the government “does not evaluate the effects of these relevant factors,” in renewing the grazing permit, the suit reads.

Grizzly bear conflicts and mortalities in the Upper Green River area are “disproportionately higher than any other single allotment or complex of grazing allotments in the [Greater Yellowstone Ecosystem],” the suit says. The grazing allotments and bear killings — 37 grizzlies have been “removed ” from the area from 2010 to 2018 — amount to an “ecological trap,” the suit says. 

In allowing the grazing to continue, the Forest Service relied on “ineffective conservation methods,” among other things, the suit claims. The agency failed to account for shifts in food sources, created a “fracture zone” in the middle of grizzly habitat with its authorization and didn’t formally consult the Fish and Wildlife Service regarding the dace, according to the filing. 

Historic ranch operations 

The Forest Service permit covers 170,000 acres where ranchers have been grazing for decades. All three ranchers who filed declarations last week run family operations in Sublette County that have endured for more than 100 years.

Each operation has several hundred mother cows that are bred annually to raise market calves and yearlings. But predation by grizzly bears is taking an intolerable toll, even though Wyoming Game and Fish compensates ranchers for verified grizzly killings, plus pays an additional amount for cattle deemed lost but unrecovered.

The calf mortality rate for members of the Upper Green River Cattle Association was around 2% in the early 1990s, Sommers wrote in his declaration. “More recently, some Association members have lost an average of 14% of their calves to depredation in a single grazing season,” he wrote.

“Since 1995, Association members have lost over 1,000 head of cattle, confirmed by state and federal agency personnel, to either grizzly bears or wolves,” the declaration reads. Actual losses “far exceed this number,” Sommers wrote.

Bookkeeping by Upper Green ranchers was important in helping the Game and Fish Department refine its compensation system to account for missing cattle where grizzly bears are involved. Sommers predicted ranchers’ demise should the suit halt the killing of grizzlies — done by wildlife officials usually upon confirmation of repeated kills. 

Upper Green association members sell a combined 2,300 feeder cattle and 650 cull cattle annually, generating from $3 million to $5 million, the declaration says. The grazing permit and allotments are necessary, it says. 

“It is my opinion that, without the Upper Green River Cattle Allotment, many of these ranches would be sold, and, undoubtedly, some would be subdivided,” Sommers’ declaration reads.

“Should the members’ ranching operations and historic grazing practices be diminished or eliminated, large ungulate migration routes and other important wildlife habitats would be affected,” he wrote. “It is the ability to maintain large ranches in the West that has kept regional landscapes like the Green River Valley intact. Without these ranches, these large tracts of open lands likely would be lost to other development.”

Lockwood and Price claimed potential infringement of their rights. If the plaintiffs are successful, that “will have a severe impact on my rights as a federal grazing permittee because my ability to graze the Upper Green River Cattle Allotment will be significantly restricted, if not eliminated,” their two statements read. “This will have a devastating impact on my livestock operation and will also impair the use of private property water rights, range improvements and related infrastructure…”

Dace endangered

The complaint about the tiny Kendal Warm Springs dace hardly registers on ranchers’ radar, Gregg said.

“We aren’t really taking a position on the base [dace] issue,” he said. Management techniques “can basically address that.”

The case for the dace, according to the conservation groups, rests on the Forest Service’s decision to not formally consult with the U.S. Fish and Wildlife Service about the world’s only population of the two-inch long fish.

The population is “critically imperiled” according to one science nonprofit watchdog organization. Scientists at NatureServe say the threat to the dace’s existence is “high” or “very high.”

The Forest Service fenced 160 acres around the warm springs to exclude cattle grazing. During the cattle drive itself, “[c]attle will be confined to the roadway when they are actively herded through the Kendall Warm Springs exclosure,” the Forest Service wrote in its permit approval.

The suit calls foul on that statement. The Forest Service admits the drive could “cause dace to temporarily switch habitat, elevate turbidity, and alter submergent vegetative cover,” the suit states, quoting the Forest Service’s own environmental review. This will constitute “an illegal take of the dace,” under the Endangered Species Act, the suit alleges.

Kendall Warm Springs burbles to the surface along a series of small bluffs above the Green River. It flows no deeper than a foot and as narrow as about 15 feet around mossy matts of vegetation to the bank of the Green River.

Along the way, it runs under a bridge over which the dirt road to Green River Lakes crosses.

Just downstream from the bridge, the warm springs plunge over a nine-foot drop into the cold water of the Green, effectively isolating the warm springs from other watery ecosystems. The dace, Rhinichthys osculus thermalis, is the only fish in the stream. Gray-green and striped, they grow up to 2 inches long.

A species that has existed from prehistoric times, Kendall Warm Springs dace have been used as bait and had their fragile habitat invaded for bathing and washing clothes. Federal officials listed the dace as a threatened species in 1970 and various agencies, including Wyoming Game and Fish Department and the Forest Service, prohibit activities deleterious to the fish and their habitat.

The big griz picture

“This lawsuit is part of a larger series of lawsuits focusing in part on delisting the grizzly bear from the Endangered Species Act,” Gregg said. The ranchers will also seek to intervene in another permit-challenging suit filed by the Center for Biological Diversity and Sierra Club, he said. 

Plaintiffs contend “lethal take should not be authorized,” said Gregg, an attorney with the Mountain States Legal Foundation. “We just don’t believe either the law or the science supports that,” he said.

Killing grizzlies “happens very infrequently,” he said. Yet the killing is necessary, Gregg said, “to stop a problem from getting exponentially worse.” Grizzlies, “they quickly take charge of the ecosystem,” he said.

“Ranching is a hard-enough job as it is,” he said, calling ranchers’ experience with bears and lawsuits “extremely frustrating.

You can understand why a lot of folks don’t want to take up their parents’ legacy,” he said.

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The conservation groups say the Greater Yellowstone Ecosystem, of which the Upper Green River is a part, is “one of the only places in the Lower 48 United States that still supports a full complement of native wildlife.

“Unfortunately,” the suit says, “recent actions by federal agencies [including issuing the grazing permit] increase threats to these species and to the integrity of the GYE.”

“No grizzlies should be killed for cows,” said  Mike Garrity, executive director of the Alliance for the Wild Rockies, in announcing the suit. “We have millions of cattle in this country but only about 700 grizzlies in the Greater Yellowstone Ecosystem.”