Holding that Yellowstone National Park bison should not be allowed to "reproduce prolifically beyond the capacity of its range," a federal judge ruled Monday that he would not stop park bison that roamed into Montana from being slaughtered.
More than 500 Yellowstone bison have been corralled in recent weeks in the park's Stephen's Creek holding facility after they roamed north of the park's boundary in search of winter range where they might escape winter's full fury. Any animals that test positive for brucellosis, a disease that can cause livestock to abort their fetuses, are being targeted for slaughter.
A handful of conservation groups and individuals -- Western Watersheds Project, the Buffalo Field Campaign, Tatanka Oyate, Gallatin Wildlife Association, Native Ecosystems Council, Yellowstone Buffalo Foundation, Meghan Gill, Charles Irestone and Daniel Brister -- sought an injunction from U.S. District Judge Charles Lovell to halt the slaughter. But in a 72-page opinion (attached below) released Monday the judge said slaughter and hunting long have been the accepted practice in the United States for managing wildlife populations.
"For those of us who admire the Yellowstone bison, it is easy to be sympathetic to an emotional appeal to 'stop the slaughter.' Yet it is clear that this population of wild bison – diseased and healthy – ought not be allowed to reproduce prolifically beyond the capacity of its range without the institution of scientific management," wrote Judge Lovell. "This has been recognized and authorized by Congress and well-implemented administratively in proper fashion. Distasteful as the lethal removal may be to some, it is clearly one of the foremost management tools – time honored – necessarily utilized to protect the species, the habitat, and the public.
"There is an annual season for lethal removal for wild animals in most of the United States and particularly in the states surrounding Yellowstone Park," he went on. "Deer, antelope, elk, moose, and others are removed annually as deemed necessary in order to scientifically control populations and accomplish these same resource goals. This is called 'hunting season,' and the phenomenon is widely accepted by the public."
In his ruling, Judge Lovell said the plaintiffs failed to show that the integrity of Yellowstone's bison herd, which numbered 3,900 last summer, would suffer from the slaughter of several hundred individuals, noting that "the herd has shown remarkable resilience following much larger culls in the winters of 2006 and 2008 (which were caused in part by the fact that the herd grew to an overabundance of more than 5,000 bison in 2005). It should emphatically be acknowledged that the Yellowstone bison is plentiful and reproductively prolific and, of course, is not a listed species under the ESA."
The judge also dismissed for lacking credibility an unpublished paper maintaining that the park's culling of bison would harm the genetic diversity of the herd. The paper, by Thomas H. Pringle, gained some recognition last week after a news service wrote a story about it.
Interior Department attorneys attacked the paper's credibility, noting that it was unpublished, had not been peer-reviewed, and was "prepared during the course of this litigation for the purpose of advancing Plaintiffs' interests in this litigation." Furthermore, Mr. Pringle was on an advisory board to the Western Watershed Project, they said.
In agreeing with the credibility issues, Judge Lovell admonished the plaintiffs for the way they presented the paper, calling it "litigation by ambush."
"The situation is further complicated by the manner in which the existence of Pringle’s study was brought into this case. It appeared as part of the last paper to be filed to submit the issue of injunctive relief to the Court. Plaintiffs first presented their motion and brief for injunctive relief. Defendants responded to that with an excellent answer brief," the judge noted. "Plaintiffs then had an opportunity to respond by reply to Defendants’ answer brief. Instead, what Plaintiffs did was to insert into the record a heretofore undisclosed secret study.
"Had Plaintiffs wanted to rely on the study, notice could have been given to the Defendants and the Court either during the administrative proceedings or after this litigation was commenced. This would not have deprived Defendants of an opportunity to respond, as occurred here," he wrote. "The Court was perplexed and disappointed by this because it indicates a failure to exercise a good faith application of the intent and spirit of the federal rules of procedure. It is litigation by ambush."
While he had not had the time to fully read the judge's ruling, Matt Skoglund at the Natural Resources Defense Council's Montana office disparaged the approach being taken to manage the bison.
“Sending wild bison off to slaughter is just an incredible tragedy. The only continuously wild bison population that remains in the United States, and yet, despite thousands of acres of habitat outside the park and recent massive changes to the brucellosis rules, our taxpayer dollars are sending these animals to slaughter," he said. "It’s so wasteful, and so tragic.”