Montana Public Radio

Groups Threaten Lawsuit Over Grizzlies Killed By Trains

Oct 28, 2019

Conservation groups announced Monday that they sent a letter to BNSF Railway threatening a lawsuit over grizzly bears killed along its train tracks. So far this year, a record eight grizzlies from the Northern Continental Divide Ecosystem (NCDE) have been killed by trains.

Grizzly bears in the Lower 48 are protected as threatened under the Endangered Species Act. It’s illegal to kill them, even if it’s an accident.

Pete Frost is an attorney with the Western Environmental Law Center, and is representing WildEarth Guardians and Western Watersheds Project. In a letter sent earlier this month, both groups alleged that BNSF Railway is violating the ESA by not doing more to mitigate grizzly deaths along its tracks.

Frost argues the railway company’s operations have led to 52 NCDE grizzly deaths since 1980. The letter also serves as a 60-day notice for a potential lawsuit.

“These trains have been killing grizzlies for a number of years, if not decades, and in this situation, it’s the responsibility of the railway company to obtain a permit that would set conditions further obviate take,” he said.

Frost said BNSF Railway has been dragging its feet when it comes to obtaining the permit for “incidental take” of grizzlies. The process would require the company to develop a “habitat conservation plan” outlining how it will mitigate grizzly deaths.

In an emailed statement, BNSF Railway wrote both the conservation plan and its incidental take permit are in the final stages of review by the U.S. Fish and Wildlife Service. It added both will soon be up for public comment.

Frost said the Environmental Law Center and the conservation groups that signed onto Monday’s letter hope to sit down with BNSF Railway to talk about potential solutions before they move forward with a lawsuit.

“We’re not train operators, we’re conservationists,” he said.

“But the literature that I’ve seen suggests that steps such as slowing trains down, perhaps running them at different times during the day, being prompt to clean up carrion and spilled grain: Those are the kinds of feasible and reasonable solutions that the railroad ought to consider.”

The conservation groups can choose whether to move forward with legal action in mid-December. It’s unknown whether the railway’s mitigation plan or incidental take permit will be released by then.