Bison Hazing in West Yellowstone

Mike Greener/Chronicle

A state helicopter flies low to help stimulate a small herd of bison to move along the Horse Butte peninsula Wednesday morning during a bison hazing intended to herd the bison back into Yellowstone National Park.

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UPDATE: On Thursday, Alliance for the Wild Rockies Executive Director Mike Garrity said his group decided to appeal U.S. District Judge Charles C. Lovell's decision to the 9th Circuit Court of Appeals. Rather than waiting the ESA-mandated 60 days to file again at the district level, AWR attorneys filed an intent to appeal.

Less than two months before bison must be pushed back into Yellowstone National Park, a judge has issued a ruling that will allow Montana authorities to use helicopters to haze the animals.

On Tuesday in Missoula, U.S. District Judge Charles C. Lovell dismissed most counts on technicalities but otherwise denied the Alliance for the Wild Rockies’ lawsuit to protect grizzly bears by grounding helicopters used in bison hazing.

“Specifically, Plaintiff has failed to show that helicopter hazing adversely impacts grizzly bears,” Lovell wrote. “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…”

AWR filed its initial complaint in May 2011 with four counts, asserting that helicopter hazing of bison around the park affected grizzly bears protected under the Endangered Species Act.

During last May’s hazing, Lovell granted AWR a temporary injunction against helicopter use because the case was still proceeding.

AWR claimed hazing violated three other acts, including the National Environmental Policy Act, but its claim was found to have no standing for a number of reasons.

“This thread of lack of standing winds its way through all of the claims filed by AWR,” Lovell wrote.

Lovell couldn’t rule on two counts involving the Endangered Species Act because AWR hadn’t waited the mandated amount of time – 60 days – between suing and indicating it would sue under the ESA. The counts were invalid on that technicality.

But that didn’t stop Lovell from saying how he might rule if he could.

The first Endangered Species Act count said helicopters disturb grizzlies, so their use violates the ESA, which criminalizes the harassment of endangered animals.

Lovell concluded that limited helicopter hazing didn’t appear to qualify as harassment because grizzly bear populations are recovering well and most bears don’t den in the area where hazing occurs.

In the second count, AWR claimed new evidence involving grizzly bears had surfaced, so the Endangered Species Act required new consultation between government agencies. The new evidence included a 2010 video showing a bear startled by a helicopter.

That count didn’t matter anymore, Lovell wrote, because the National Park Service and the U.S. Fish and Wildlife Service met on the issue in September while the case was still being argued.

In November, the USFWS approved a biological evaluation written by the NPS that found “hazing operations … may affect, but are not likely to adversely affect grizzly bears.”

AWR executive director Mike Garrity said AWR didn’t really lose the case because its goal – the ESA consultation – was achieved.

However, on Wednesday, AWR filed a letter that they intended to sue again under the ESA.

“We got what we asked for; (the agencies) just did it on their own,” Garrity said. “The letter just starts the clock while we look at their consultation to make sure it follows the best available science.”

Christian MacKay, executive officer of the Montana Department of Livestock, said he was pleased with the ruling because it preserved a tool that is sometimes needed for hazing bison back into the park.

Montana Fish, Wildlife & Parks and the Department of Livestock must herd all bison back into the park by May 15 under the Interagency Bison Management Plan to avoid contact with cattle.

“The effectiveness of getting them in to where they’ll stay put is better with a helicopter,” MacKay said.

MacKay said he didn’t know if helicopters would be used much this spring because of funding issues. Last spring, the IBMP decided no federal funds could be used for helicopter hazing.

“It’s paid for with a mix of state and federal funding,” MacKay said. “If we end up doing it on state money, we’ll minimize the use.”

Laura Lundquist can be reached at 582-2638 or Follow her on Twitter at @llundquist.

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