Using helicopters to drive bison back into Yellowstone National Park may resume this spring after a federal court judge in Helena ruled Tuesday against a conservation group that believes hazing harms grizzly bears.
However, the Alliance for the Wild Rockies already has sent a new 60-day “notice of intent to sue” over the hazing, insisting that previous courts and studies have shown that low-altitude helicopter use in grizzly bear habitat is harmful to them.
Helicopter hazing had been used almost every spring for a decade, typically beginning on May 15, to round up bison that have left Yellowstone and return them to the park’s confines.
Senior U.S. District Court Judge Charles Lovell issued a temporary restraining order on May 14, 2012, effectively halting the helicopter hazing for the season. Grizzlies are considered a threatened animal under the Endangered Species Act.
Lovell wrote this week that he issued the restraining order because the Department of Livestock was starting helicopter hazing of bison and he wasn’t ready to rule at that time on the Alliance’s lawsuit, which had been filed in 2011.
Christian MacKay, executive officer for the Montana Department of Livestock, said the restraining order made it much more difficult to force the bison to return to the park.
“Last year, we ended up hazing animals multiple times (using people on horseback) because you can’t get them quite as far and generally they don’t stay as well,” MacKay said. “This year we have had minimal hazing.”
More bison have been taken by Native Americans and licensed hunters — about 250 bison — outside the park this year than in the past decade, as their population continues to grow. MacKay said that they’re focusing more on hunting than slaughtering animals outside the park.
But once May 15 rolls around, the state may start hazing again; that’s about a month before livestock are allowed to graze on public lands, some of which are used by the bison outside the park. Livestock owners fear allowing the bison and cattle to be in close proximity will transmit brucellosis from bison to cattle, which causes animals to abort fetuses.
“Having that tool of helicopter hazing in the tool box could help us avoid lethal removal of animals,” MacKay said.
In his 46-page decision issued Tuesday, Lovell writes that the Alliance for the Wild Rockies hadn’t shown that hazing bison that migrate out of Yellowstone significantly harms or “takes” grizzlies and that their numbers are continuing to increase.
“Helicopter hazing in proximity of YNP may be controversial — but not because of its impact on grizzly bears — but it is certainly less controversial than shooting bison to remove them from areas where the State of Montana has determined bison do not belong,” Lovell wrote.
He added that helicopter hazing doesn’t establish a precedent for any future actions; isn’t cumulatively significant in its impact on grizzly bears; and doesn’t cause the loss or destruction of scientific, cultural, or historical resources.
“Environmental analysis has concluded that helicopter hazing may affect, but is not likely to adversely affect listed grizzly bears,” he added. “… the severity of the impact of helicopter hazing on grizzly bears appears to be low.”
Despite Lovell’s comments, Mike Garrity, executive director of the Alliance for the Wild Rockies, said that he thought his group won the lawsuit because they wanted to force agencies involved in bison management to consult with the U.S. Fish and Wildlife Service over impacts to grizzlies. The USFWS administers the Endangered Species Act.
“After we got the injunction, they consulted, so Judge Lovell said that issue is moot because they did what we asked them to do,” Garrity said. “We never sued them to rule on whether the consultation was adequate or not. I know he wrote about this extensively … but we think they still have to consult and get a ‘take’ permit. With a take permit, it has to be put out for public comment and decision on whether they can take without harming.”
Lovell wrote in his order that federal wildlife managers have concluded that simply moving a bear from one spot to anther by any means doesn’t constitute a taking of that animal. He said that a video purportedly showing a grizzly running from a helicopter didn’t constitute a take in his opinion.
Garrity argues that while Lovell’s ruling covered a lot of ground, U.S. District Court Judge Donald Molloy had ruled three times that low-altitude helicopter use in grizzly bear habitat is arbitrary and that the park’s bear specialist said grizzlies are afraid of helicopters.
“According to a National Park Service literature review of five different studies, helicopters cause grizzly bears to panic and flee “‘in nearly all cases,’” Garrity’s attorney states in the lawsuit. “Grizzly bears never become tolerant of helicopters, even with frequent exposure. Grizzlies may abandon areas in response to even infrequent overflights, and the consequences of habitat abandonment can be serious, particularly for species whose high-quality habitat is already scarce.”
Garrity said he’s not sure if they’ll follow through with a lawsuit; it depends on the next step by the defendants.
The notice of intent to sue was sent to the federal Department of the Interior, National Park Service, U.S. Fish and Wildlife Service, the U.S. Department of Agriculture and its subsidiary, the Animal and Plant Health Inspection Services, the U.S. Forest Service and MacKay. All are members of the Inter-agency Bison Management Plan, or IBMP, and were named in the Alliance’s earlier lawsuit.
Garrity said the IBMP is not using the best available science when its members state that using low-altitude helicopters doesn’t adversely affect grizzly bears and that it’s abusing its discretion, is arbitrary and capricious and violates the Endangered Species Act. He wants them to complete a new or amended consultation and include a legally adequate biological opinion; he’s also calling for the hazing to stop if it may displace grizzlies during the spring.
Many of those issues are discussed and dismissed in Lovell’s order this week.
“Plaintiff has merely shown, at most, that a grizzly bear will notice and be startled by a helicopter overhead, but such a minor event does not rise to the level of an adverse impact nor does it even raise a concern of an adverse impact,” Lovell wrote, adding that the federal agencies shouldn’t be named as defendants since it’s the state of Montana that decides to and performs the hazing operations. “Montana’s authority to conduct helicopter hazing arises from the legal authority of the State of Montana to manage its own wildlife.”
Reporter Eve Byron: 447-4076 or email@example.com. Follow Eve on Twitter.com/IR_EveByron