JACKSON — The National Elk Refuge was less than a week into its first-ever modified supplemental feeding season when environmental groups sued, asking a judge to stiffen the plans to speed up a phase out.
Litigation from the same groups last year prompted the U.S. Fish and Wildlife Service to move forward with a feeding-reduction plan that was due out more than a dozen years ago. The tactic worked, and by the new year the 24,700-acre refuge had set in motion a strategy meant to wean the Jackson Herd off of feed. The plan calls for cutting off alfalfa pellets around one week earlier in the spring — a strategy environmental groups deemed woefully inadequate and too deferential to the state of Wyoming.
“It’s not illegal to defer to the state,” Earthjustice managing attorney Tim Preso told the News&Guide, “but what is illegal is when the Fish and Wildlife Service lets its deference to the state lead to violations of fundamental regulations that apply to the National Wildlife Refuge System, and that’s what happened here.”
Representing the Sierra Club, National Wildlife Refuge Association and Defenders of Wildlife, Preso filed his complaint Monday in U.S. District Court in Washington, D.C. The lawsuit asks a judge to force the Fish and Wildlife Service, “within the shortest practicable period of time,” to compel a “lawful, objective and science-based plan” to phase out the 108-year-old feeding program on the Refuge.
In the meantime, business-as-usual elk feeding — at least until spring — will continue on the refuge, Acting Manager Cris Dippel told the News&Guide.
“We’re going to keep feeding until we find out what we need to do and what’s happening with the lawsuit,” Dippel said. “We started [feeding] last Saturday. We can’t just stop.”
The Wyoming Game and Fish Department declined an interview for this story, and officials said the state is still mulling whether to join the U.S. Fish and Wildlife Service as an intervening party. A Wyoming Game and Fish Commission member could not be reached by press time.
Preso said it was the November 2018 detection of chronic wasting disease in a Grand Teton National Park mule deer that prompted the environmental groups’ involvement. He cited the concerns of Tom Roffe, a former Fish and Wildlife Service chief veterinarian who criticized the refuge step-down plan for his former agency.
“The agency’s step-down plan defines success at a level of reduced feeding that would still leave nearly half of the Jackson elk herd — 5,000 elk — densely concentrated on artificial feedlines for more than 50 days each winter,” Earthjustice’s complaint states. “According to Dr. Thomas Roffe ... this level of artificial feeding ‘still leaves a substantial risk of catastrophic disease propagation’ in the Jackson elk herd. Nevertheless, the service failed to consider this critical issue, much less to heed, or even acknowledge, Dr. Roffe’s warning.”
Consideration given to Wyoming and its Game and Fish department was different, the complaint contends. The step-down plan was modified, delayed and modified again at the request of the state.
The deference has a relevant legal backdrop, Preso said. When conservationists litigated and lost while challenging the step-down plan’s precursor, the 2007 bison and elk management plan, plaintiffs argued that the service unlawfully gave the state of Wyoming veto power. The judge took the U.S. Department of Interior secretary “at his word” that the state had no such veto.
“What’s remarkable about this,” Preso said, “is they had the D.C. Circuit Court telling them where the red line was that they can’t cross — Wyoming doesn’t have a veto — and then they’re willing to turn around and cross that line and give Wyoming a veto.”
Wyoming successfully shaped the refuge’s plans up until the final document was issued. When a draft of the step-down plan was published in the fall the “principal strategy” was to delay the onset of feeding in hopes that elk and bison don’t learn how to use feed lines. By the time the final document was published in December the strategy had been put off an additional two years, with only a speculative possibility that it would happen in year three, according to the complaint. For now the feeding program is being changed only in the spring, when refuge officials might stop doling out alfalfa pellets to the elk a week or so earlier.