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Judge Rules Lawsuit Can Proceed Against Federal Bear Baiting

May 7, 2020 DAVID REESE


(CN) — A federal judge in Idaho on Thursday denied the federal government’s motion to dismiss a lawsuit by conservation organizations that sought to stop black-bear baiting in national forests in Idaho and Wyoming.

Plaintiffs WildEarth Guardians, Western Watersheds Project and Wilderness Watch filed a lawsuit against the U.S. Forest Service and U.S. Fish and Wildlife Service in June 2019, alleging that the use of bait while hunting black bears results in incidental killing of grizzly bears, a protected species under the Endangered Species Act.

The plaintiffs allege that under the law, the incidental harvest of grizzly bears in this case triggers the Forest Service’s responsibility to initiate consultation with the U.S. Fish and Wildlife Service and review the policy of black bear baiting.

Plaintiffs also argued in their cross motion for summary judgment that the original 1995 National Environmental Policy Act environmental analysis that addressed black bear baiting was outdated and needs to be supplemented with new information.

U.S. Magistrate Judge Candy Dale ruled that the case can continue under the first count, using the Endangered Species Act rules, but she dismissed the second count.

In 1994, the Forest Service proposed a national policy to allow states to decide whether bait can be used in national forests, although the service acknowledged the proposal would likely affect grizzly bears, which remain listed as threatened with extinction under the Endangered Species Act.

On March 15, 1995, the Forest Service issued a decision notice and “Finding of No Significant Impact,” in which it adopted the proposed policy and determined that no environmental impact statement was needed because the proposed policy was not a major federal action and it would “not significantly affect the quality of the human environment.”

Wyoming and Idaho are the only two states that allow black bear baiting on national forests.

The U.S. Fish and Wildlife Service at the time said there was a remote possibility that a grizzly bear could be killed due to black bear baiting in national forests.

The service issued an incidental take statement that requires the service to have a continuing duty to regulate black bear baiting in national forests, with “no incidental take” of grizzly bears allowed. And, if any single killing of a grizzly were to occur, the Forest Service must initiate formal consultation with the Fish and Wildlife Service.

Just three months after that policy was enacted, several environmental groups sued over the policy, claiming that the Forest Service violated the Endangered Species Act by failing to formally consult with Fish and Wildlife Service, and violated the National Environmental Policy Act by failing to first prepare an EIS — rather than an Environmental Assessment — on the issue.

In August 1996, the district court granted summary judgment to the Forest Service and rejected both claims. The plaintiffs appealed the decision and on Oct.17, 1997, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s judgment.

In the current case, the federal defendants contend the first count fails to state a claim for relief against the Fish and Wildlife Service, because the agency does not have the authority to reinitiate consultation under the ESA.

The Forest Service asserted the second count must be dismissed as there is no major federal action remaining to occur, and it has no duty to supplement the environmental analysis under NEPA.

Plaintiff WildEarth Guardians alleges at least 10 grizzly bears have been killed due to black bear hunting using bait in national forests in Idaho and Wyoming, triggering the requirement to reinitiate consultation.

WildEarth alleges both agencies must reinitiate consultation because the amount of take in the Incidental Take has been exceeded, and new information reveals effects of the action not previously considered.

“States should not allow baiting that can attract grizzlies and lead to their deaths,” Pete Frost, attorney for the Western Environmental Law Center, said. “Grizzlies have been shot near bait, and more may die, unless the Forest Service properly acts.”

While the Forest Service did not dispute it was a proper defendant in the first count, the Fish and Wildlife Service argued it was not, and urged dismissal because it lacked the legal authority to initiate consultation. The FWS claimed the authority to initiate consultation lies solely with the action agency – the U.S. Forest Service, in this case.

However, Dale wrote, “While the federal agencies’ arguments might be compelling if this was an issue of first impression, the Ninth Circuit has already addressed this precise issue multiple times and confirmed that both the action agency and the consulting agency have a duty to reinitiate consultation.”

Dale ruled that after an agency has prepared an environmental assessment and has issued a Finding of No Significant Impact, an agency must supplement its environmental analysis if there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact. Dale ruled that there is no ongoing or proposed federal action that requires supplementation.

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Endangered Species Act

Has run it usefulness and should be done away with.

Actually since 1995 only 8 grizzlies have been killed inadvertently by BB baiting hunters to the best of my knowledge...that's 1 per every 3 years on average.

With an outrageous over supply of grizzlies up here already...I don't think that classifies as a problem. Especially when ID, MT, and WY are all desperately trying to get hunting seasons for them, and now the USFWS agrees too!