District of Columbia District Court Judge Amit P. Mehta released an order Friday denying Western Watershed Project et al.’s motion for preliminary injunction against David Bernhardt, Secretary of the U.S. Department of the Interior (DOI), the U.S. Fish and Wildlife Service (FWS), and the U.S. Forest Service (USFS). The plaintiffs sought to prevent the lethal removal of grizzly bears and cattle herding in the Upper Green River Area Rangeland Project (UGRA Project) in Bridger-Teton National Forest. Bridger-Teton National Forest is located in Wyoming, and adjacent to Yellowstone National Park, and Grand-Teton National Park.
In March, the plaintiffs—Western Watershed Project, Alliance For The Wild Rockies, and Yellowstone To Uintas Connection—filed a complaint against Secretary Bernhardt of the DOI, the FWS and the USFS over domestic livestock grazing permits authorized by the USFS on October 11, 2019. The permits allowed “domestic livestock grazing across 170,643 acres of suitable grizzly bear habitat with the [Greater Yellowstone Ecosystem (GYE)], and authorized cattle-herding through the Kendall Warm Springs exclosure.” Additionally, the “USFS permits 8,772 cow/calf pairs and 47 horses to graze six allotments in the area between June 14 and October 15 for the next ten years.”
Due to the possible adverse effects on grizzly bears, the USFS had to consult the FWS regarding the UGRA Project’s impact. FWS produced a Biological Opinion for the Effects to the Grizzly Bears and concluded the project “would not jeopardize the continued existence of the grizzly bear in the GYE.” Furthermore, the FWS included an Incidental Take Statement with the Biological opinion that exempts “civil and criminal liability under the [Endangered Species Act] the killing of up to 72 grizzly bears over the next ten years in association with the UGRA Project.”
The plaintiffs stated the GYE “is one of the only places in the Lower 48 United States that still supports a full complement of native wildlife, including moose, elk, pronghorn, wolves, and grizzly bears.” The plaintiffs alleged the FWS and USFS both violated several sections of the ESA. Specifically, they listed four causes of actions under the ESA, one of them focusing on the Opinion and Incidental Take Statement by FWS, which they called “flawed” and claimed the “USFS may not lawfully rely on those documents to discharge its own ESA responsibilities in connection with grizzly bear take in the UGRA Project area and broader Greater Yellowstone Ecosystem.” Furthermore, the plaintiffs argued the FWS Opinion and Incidental Take Statements were “arbitrary, capricious, and unlawful, and USFS may not rationally or lawfully rely on them.”
The final claim in the complaint pertains to the Kendal Warm Springs Dace, an endangered fish species that resides in the URGA Project area. The USFS has recognized that herding “could cause dace to temporarily switch habitat, elevate turbidity, and alter submergent vegetation cover.” The plaintiffs argued “[i]n violation of the ESA, USFS and FWS have not engaged in formal consultation under section 7 of the Endangered Species Act resulting in a biological opinion or incidental take statement that would exempt USFS from ESA liability for such take.”
The plaintiffs have sought the court declares the FWS and USFS violated the ESA and remand this issue of the grizzly bears and dace fish back to the agencies so they can comply with the ESA, and additionally sought the now denied, preliminary injunction to halt the permits.
In his order, Judge Mehta said a memorandum opinion regarding his decision would be filed sometime this week.
