By Thomas Cribbins*
Last October, the Western Environmental Law Center (WELC) sent notice to BNSF Railroad and the Secretary of the Interior that it intends to sue under the Endangered Species Act for illegal “takings” of grizzly bears. The WELC claims that BNSF may be liable for its role in the deaths of grizzly bears along BNSF’s railroad tracks in northwest Montana, around Glacier National Park. WELC says that 52 grizzlies have been killed on BNSF tracks from 1980-2018 and averaging about 1 train-killed grizzly from 2010-2018.[i]
However, the full story is not entirely revealed by the letter. BNSF has been sued over incidental “takings” of grizzly bears in northwest Montana before, likely in the same section of railroad. In National Wildlife Federation v. BNSF, the 9th Circuit decided an ESA case on similar facts.[ii] But there is reason to believe that this case may end more favorably for the environmentalists than did that case. In the 1994 case, NWF, the court held that a preliminary injunction was not warranted.[iii] That suit stemmed from an incident in 1988 and 1989 where a significant amount of corn was spilled in a train derailment. The train derailed because of a section of rough railroad track.[iv] This massive pile of spilt corn artificially attracted grizzlies to the spill site. This essentially ensured that grizzlies would be at high risk of being killed by trains. The appellate court affirmed that cleaning up the spill and fixing the track to prevent derailments precluded requiring BNSF to do more to protect the grizzlies.[v] The court there reasoned that since the tracks were fixed and the spilt corn was cleaned up, no future irreparable harm would result. The court reasoned that a claim regarding an isolated accident like a train derailment did not warrant forcing BNSF to alter its operations to prevent more grizzly deaths, even though the derailment undoubtedly endangered grizzlies.[vi] However, in this new case, the WELC highlights that this case may be different.
In the notice letter, WELC suggest that BNSF may be violating the ESA for several reasons. First, WELC highlights that the railroad tracks in this area are highly attractive to grizzlies. The railroad right-of-way provides some of the only source of snow-free vegetation grizzlies can eat for significant portions of the year in the Glacier National Park area.[vii] Relatedly, this same exposed grass attracts deer and other animals often struck by trains. This carrion also lures grizzlies into the dangerous railroad corridor.[viii] It is true of many animals, but grizzly bears feed primarily at twilight and at night. WELC also states that BNSF runs the highest number of trains during the twilight and nighttime hours: about one-half train per hour more during feeding hours.[ix] Also, grizzly mortality spikes just before and just after grizzlies go into hibernation.[x] Just before hibernation is also when grain shipments are at their highest, and we already know grain spillage attracts grizzly bears. Therefore, while BNSF may have rectified the likelihood of an exceptionally artificial attraction for grizzly bears, like a grain train derailment, grizzlies are still being killed on the tracks. Evidently, BNSF still poses a significant danger for Montana grizzlies.
According to WELC’s notice letter, after the 9 grizzlies killed from 2010 to 2018, 9 more grizzlies were killed along the tracks in 2019 alone.[xi] Unfortunately, the 9th Circuit’s prediction in the 1994 case has not borne out. The railroad tracks are still extremely attractive to grizzlies: as BNSF is well aware. The danger that the railroad tracks in the Glacier National Park area pose is not limited to outlier train derailments. Significant numbers of grizzlies have been killed routinely by trains. Expectedly, BNSF’s behavior has only further endangered grizzlies, despite known substantial risk of grizzly takings. In 1994, the plaintiffs asked to reduce BNSF’s train speed from an average of 25 miles per hour to 15.[xii] According to the WELC letter, BNSF’s trains average 35 mph now.[xiii] And as stated above, BNSF has been running trains more frequently during peak feeding times.[xiv] In the previous case, the case revolved around an isolated incident. The plaintiffs lost because the court could not justify ordering an injunction to force BNSF to further modify their operations based on a freak accident. Without a threat of future takings, the plaintiff failed to establish a need for the injunctive relief. Now, the tables may have turned. In another ESA injunction case, Sierra Club v. Marsh, the 9th Circuit held that the normal balancing of the equities element for an injunction weighs strongly in favor of the animals.[xv] BNSF “took” grizzly bears under the ESA by hitting them with their trains.[xvi] Therefore, under the prevailing test for an injunction, the main element to prove will be a showing of irreparable harm.[xvii] But as outlined in WELC’s letter, BNSF has only worsened in killing grizzlies in this area. BNSF’s changes in operations only pose a greater risk of irreparable harm to grizzlies in the area. Grizzly bears in the contiguous United States are at a precarious population point, hence their endangered species status and greater protections by the Endangered Species Act.
In my opinion, whether to grant injunctive relief in this case may come down to the court’s idea of whether BNSF’s predictable killing of grizzly bears on their tracks suffices as irreparable harm. WELC has a strong argument that BNSF has ramped up operations in such a way to further endanger grizzlies, posing a greater threat to an endangered species than before. In the 1994 case, the 9th Circuit’s decisions appears to have hinged on the fact that BNSF had made substantial efforts to prevent future harm. Nearly 30 years later, BNSF’s efforts have only increased their danger to grizzlies and an injunction would be appropriate to prevent future takings of grizzlies. WELC would be wise to emphasize the predictable future harm BNSF will inflict without intervention.
*Thomas Cribbins is a Junior Editor on MJEAL. They can be reached via email at email@example.com.
[i] Peter M.K. Frost, Western Environmental Law Center (2019), https://westernlaw.org/wp-content/uploads/2019/10/2019.10.19-BSNF-Grizzly-Train-Deaths-NOI.pdf (last visited Feb 5, 2020).
[ii] Nat’l Wildlife Fed’n v. Burlington N.R.R., 23 F.3d 1508 (9th Cir. 1994).
[iv] Id. at 1510.
[v] Id. at 1513.
[vii] WELC Notice Letter, Supra.
[viii] WELC Notice Letter, Supra.
[ix] WELC Notice Letter, Supra.
[x] WELC Notice Letter, Supra.
[xi] WELC Notice Letter, Supra at page 4.
[xii] Id. at 1510.
[xiii] WELC Notice Letter, Supra at page 3.
[xiv] WELC Notice Letter, Supra.
[xv] Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987).
[xvi] See 16 USC 1538(a)(1)(B) and 16 USC 1532(19).
[xvii] Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”)