ELR Citation: ELR 20802
No(s). 92-35595 (9th Cir. May 5, 1994)

The court affirms a district court's refusal to issue a preliminary injunction ordering a railroad to reduce operating speed around derailment sites where spilled corn attracted grizzly bears, to study the feasibility of equipping locomotives with bear-protective devices, and to obtain a permit from the U.S. Department of the Interior authorizing incidental taking of grizzly bears. In the winter of 1988-1989, three of defendant railroad's trains carrying grain derailed on a stretch of track south of Glacier National Park in Montana. The derailed cars spilled nearly 10,000 tons of corn, attracting grizzly bears to the site to feed. By October 1990, defendant's trains had collided with and killed at least five bears in the immediate vicinity of the spills. The court first holds that these killings constitute "takings" in violation of the Endangered Species Act. The court holds, however, that plaintiff environmental groups are not entitled to the injunction, because they failed to demonstrate a sufficient likelihood of irreparable future injury to the bears. Cleanup of the spills substantially minimized the attractiveness of the sites as food sources, and replacement of affected track and installation of concrete railroad ties make future train derailments unlikely.

Counsel for Plaintiffs
Thomas M. France
National Wildlife Federation
240 N. Higgins Ave., Missoula MT 59802
(406) 721-6705

Counsel for Defendant
J. Daniel Hoven
Browning, Kaleczyc, Berry & Hoven
139 N. Last Chance Gulch, P.O. Box 1697, Helena MT 59624
(406) 449-6220