UPDATED: Wildlife groups sue BNSF for grizzlies being killed by trains without safety measures

Dec 14, 2023 | 6:57 pm ET

By Darrell Ehrlick

Wildlife groups sue BNSF for grizzlies being killed by trains without safety measures

Grizzly bears (Photo courtesy of the National Park Service).

Wildlife groups aren’t sure what is worse: That trains have killed more than 63 grizzly bears in northern Montana since 2008, or that Burlington Northern Santa Fe Railroad has seemed to ignore requests to help alleviate the problem.

So two groups, WildEarth Guardians and Western Watershed Project, have sued BNSF Railway for ignoring the Endangered Species Act as well as failing to take actions to lessen the number of grizzly bears killed on railways.

BNSF officials did not respond directly to the lawsuit, but provided this statement on Friday:

While BNSF doesn’t comment on specific lawsuits, we have been working closely with stakeholders, including the U.S. Fish & Wildlife Service, Montana Fish Wildlife and Parks and the Blackfeet Nation to eliminate avoidable grizzly bear mortalities since the 1990s. More recently, we have worked to develop a Habitat Conservation Plan and a draft HCP was published in January 2021. Hundreds of comments were received, and the final HCP has been submitted to the U.S. Fish & Wildlife Service to be reviewed before it is published.

The HCP memorializes many of the steps BNSF has already been taking to reduce grizzly bear deaths, including:

Removal of spilled/leaked grain and carrion from track structures
Reducing/removing vegetation that might attract grizzly bears
Funding for additional grizzly bear managers for Montana Fish Wildlife and Parks and the Blackfeet Nation
Funding for radio collars, bear-proof garbage bins and electric fencing
Funding for grizzly bear awareness programs

BNSF’s goal is to eliminate avoidable grizzly bear mortality and maintain compliance with the Endangered Species Act.

Of particular interest is the BNSF rail line, which runs from Shelby, Montana, to Sandpoint, Idaho, across the federally designated Northern Continental Divide Ecosystem, which includes the Cabinet-Yaak range. That’s 206 miles of track that BNSF uses or leases to other companies and runs through both national forests as well as the

southern border of Glacier National Park.

BNSF has applied for years to the United States Fish and Wildlife Service, which can authorize “incidental take” permits that would exempt the railroad from penalty for trains that strike bears. But in a lawsuit filed in federal district court in Missoula on Thursday, attorneys for the environmental organizations argue that the federal government has never issued the permits, and therefore the grizzly bears that have been killed have been illegal.

“None of these habitat conservation plans nor incidental take permits has been finalized,” the plaintiffs allege.

The lawsuit traces the origin of the conflict to 2018 and 2019 as the railroad began applying for incidental take permits. The wildlife groups had put BNSF on notice that it would intend to sue on Oct. 19, 2019, but no action was taken.

From 2008 to 2023, the conservation groups document that 63 grizzly deaths because of the train line.

The court documents also outline ways that railroads can help reduce hitting bears by train, which include reducing train speeds around curves or in canyons or areas with few escape routes.

“Train-triggered warning systems that signal the impending arrival of a train can lessen the chance a train will strike a grizzly bear,” it said. “Warning systems like flashing lights and bell sounds can lessen the chance a grizzly bear will enter the trestle. Electrified mats near a trestle can lessen the chance a grizzly bear will enter the trestle.”

The suit also said that railroads can take more precautions from spilling or leaking grain, and lessening other livestock around the rails, including removing animal carcasses, which would help reduce grizzly deaths, the suit said.

“We are extremely disappointed that, after all these years, BNSF has refused to change its business practices to prevent the unnecessary deaths of Montana’s iconic grizzlies, resulting in the tragic deaths of three bears just this fall,” said Sarah McMillan, wildlife and wildlands program director at the Western Environmental Law Center in Missoula. “When a company chooses to operate in the epicenter of key habitat for a threatened species, it must take some responsibility to adapt practices to minimize its impacts on these animals.”