CORRECTION: Due to an editing omission, MoJo failed to include the plaintiff groups in the lawsuit. We have included a link to the lawsuit, which indicates the nine plaintiff conservation organizations below.
Human activities are increasingly leading to grizzly bear deaths, as subdivisions and recreationists invade the Paradise Valley, while agriculture still dominates the flatland and some foothills. As Yellowstone grizzly bears try to find routes connecting them to the Northern Continental Divide, wildlife advocates are questioning why the U.S. Forest Service is maintaining and expanding cattle grazing allotments along the western edge of the Absaroka Range close to a wilderness that grizzlies call home.
Nine conservation groups, led by the nonprofit Western Watersheds Project, in September filed a lawsuit against the U.S. Forest Service challenging the agency’s East Paradise Range Allotment Management Plan decision that “authorizes continued and expanded livestock grazing on National Forest lands in occupied grizzly bear habitat in the Absaroka Mountains, just north of Yellowstone National Park,” according to court documents.
On Oct. 29, nearly two dozen people filtered into the gallery of a Missoula federal district courtroom to hear the attorney representing nine conservation groups debate a federal attorney over whether the Forest Service properly assessed six grazing allotments interspersed along the valley between Gardiner and Livingston, and particularly their potential effect on grizzly bears.
Two larger allotments totaling more than 11,000 acres south of Chico abut the Dome Mountain Wildlife Management Area on the west and the Absaroka-Beartooth Wilderness on the east. Another 2,900-acre allotment sits along the south side of Mill Creek less than three miles from the wilderness. The allotment closest to Livingston is 5,400 acres straddling Suce Creek mostly within the Absaroka-Beartooth Wilderness. The smallest are Pine Creek and Elbow near Dexter Point.
In 2013, the Forest Service considered some changes to the allotments that required an environmental analysis, including enlarging a few allotments and allowing grazing to start in June rather than July. The grazing allotments have existed for decades, but this would be the first time the agency made a study of them. Three of the larger allotments have been vacant since at least 2009 and would remain so for the time being.
In 2020, the Forest Service came out with a draft environmental assessment, which was met with several public comments asking why it didn’t really address the possibility of increased conflict with grizzly bears. Wildlife advocates were disappointed a year later when the Forest Service issued a final assessment and decision that ignored many of their questions. So they went to court, claiming the Forest Service didn’t follow the National Environmental Policy Act, known as NEPA. The plaintiffs said the agency should have conducted a more in-depth environmental impact statement because the assessment didn’t examine how earlier grazing could lead to more conflict or how compounding effects of human development in the valley that could limit grizzly bear connectivity.
Western Environmental Law attorney Matthew Bishop argued for the wildlife groups that the Forest Service used a baseline from 1998 of conditions on Forest Service land and didn’t consider how increasing conflict in the area has led to more grizzlies dying at human hands every year since. In 2021, for example, there were 80 grizzly deaths and 20 were due to livestock conflict. Bishop also tried to introduce more evidence showing that grizzly conflict is likely to increase if the allotments are opened early in June because three- and four-month-old calves would attract grizzlies looking for a meal. That’s especially the case when grizzlies have lost some of their food sources, including whitebark pine nuts and Yellowstone cutthroat trout, in Greater Yellowstone.
“How concise is too concise? There’s a point at which an EA becomes so concise as to be devoid of any information.”–
Kathleen DeSoto, Magistrate Judge, U.S. District Court of Montana
Federal attorney Krystal-Rose Perez said the Forest Service used the 1998 baseline because it’s applied in the Yellowstone Grizzly Conservation Management Plan and it shows the amount of grazing hasn’t exceeded that baseline. Perez also said the Forest Service looked at some of the issues Bishop brought up but didn’t include the detail in the environmental assessment since it would have made the document too long and the information can be found in other places.
Noting that Forest Service used the 1998 baseline in relation to grazing while the plaintiffs wanted the baseline to address the current status of grizzlies, federal Magistrate Judge Kathleen DeSoto said the concept of baseline was “like ships passing in the night.” She also questioned the fact that the environmental assessment makes little or no mention that the Forest Service looked at connectivity, increased calf depredation or cumulative effects of surrounding development.
“The EA is to be a brief concise document, but if it’s not mentioned in here at all, how is the public supposed to know you took a hard look at connectivity?” DeSoto said. “How concise is too concise? There’s a point at which an EA becomes so concise as to be devoid of any information.”
Perez said the argument that the allotments would interfere with connectivity was just speculation and the plaintiffs hadn’t raised that question during the public comment period. While the Forest Service had concluded there was a risk to individual bears, there was not a risk to the entire species.
“The plaintiffs have to present some kind of evidence that there’s a potential for a significant impact, but they haven’t shown that in any way,” Perez told the judge. “The best [evidence] would be a conflict in these allotments. Instead, there’s just speculation about a potential conflict.”
If DeSoto were to find that the Forest Service hadn’t followed NEPA, she could direct the agency to rewrite the environmental assessment to include the details Perez said they decided not to include. The grazing allotments would remain as they are. Perez said that would mean that the Forest Service wouldn’t have to carry through with other activities outlined in the final decision such as weed control or fencing.
Bishop said the environmental assessment bypassed or overlooked too much information, so he asked the judge to require the Forest Service to conduct a more detailed environmental impact statement.
“The 9th Circuit explained the whole purpose of an EIS is to resolve uncertainty by the further collection of data, and with the collection of data, it may prevent speculation,” Bishop said. “That is the purpose of an EIS: to obviate need for speculation. And that is the situation here.”
DeSoto didn’t tell the attorneys when she might issue a ruling, but it’s unlikely to be before the end of the year. She will release the ruling before any grazing would be allowed begin in June.
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