Much discussed case ends with victory for bear researchers-

Yolanda Evert sued the federal government over the grizzly mauling death of her husband Erwin Evert as he walked near the Kitty Creek trail on June 17, 2010. Erwin Evert came upon a male grizzly that had very recently been trapped, tranquilized, and radio-collared.  The bear had been turned loose by bear researchers from the Interagency Grizzly Bear Study Team just a couple hours before Evert came by.

Interestingly Judge Freudenthal did not use a federal law or regulation to decide who won the case. Instead she used Wyoming’s Recreational Use Act and issued a summary judgement. A summary judgement can be made when the admissible evidence produced in the case shows that there is no genuine issue of any material fact so the decision is a matter of what the law says only.  For example, for those who follow by many cases the BLM loses to Western Watersheds Project on grazing issues, many, perhaps most of them come by means of a summary judgement.

The summary judgement is interesting because there seemed to be so much debate, at least in various non-legal forums, over the actual facts of the situation.  The Wildlife News ran several stories and there was much discussion in our forum.

Here is a story about the decesion in the Billings Gazette, Judge sides with feds in rejecting wrongful death suit over fatal bear mauling near Yellowstone.  By Ruffin Prevost.  YellowstoneGate.com.

Here is the actual decision as a PDF file.  Evert-v-United-States

 

 

 

 

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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

25 Responses to Federal Judge Nancy Freudenthal dismisses wrongful death suit on grizzly mauling in Kitty Creek

  1. avatar CodyCoyote says:

    IMO, this ruling from the bench and not a Jury is a travesty. This case was a precedent setter, and the Government feared the consequences mightily. Judge Freudenthal appears to have reversed her thinking from last February when she ruled the case could go forward on merits, then did not rule on those meritorious circumstances at all ( the negligence overriding implied risk of activities on public lands). Instead, she ruled very narrowly and used a WYOMING state law to decide a case that occurred on federal public land. The IGBC and all federal reosource agents dodged a high caliber bullet that was aimed straight at them in this instance, with huge implications in their future conduct, thanks to Judge Freudenthal’s narrow decision.

    If this case had been heard by a jury, the outcome may have been different . If it had been taken to a Grand Jury , the law itself would have been scrutinized.

    It’s a setback, IMO. A precedent setting setback that gives the government a free pass to not have to mitigate risks or take any explicit actions to inform , let alone protect, the public land user.

    Judge Freudenthal was nominated to the federal bench by her husband, outgoing Wyoming Governor Dave Freudenthal in 2010 who was previously a US Attorney for Wyoming-Montana and not known to be friendly to wolves and grizzlies.

  2. avatar WM says:

    Cody,

    I agree with you that this is a travesty. My reasoning is a bit different.

    I don’t think the Judge had much choice, except to rule as she did in awarding Summary Judgment on the best facts the plaintiff could put forward as revealed in Discovery (prior to a trial before the finder of fact, also probably her).

    The judge’s obligatory ruling turns on applying the language of this WY recreation statute giving immunity to any landowner, as a matter of law (here the Judge agrees the US government gets the same protection as a private person = landowner who doesn’t charge for entry => immunity for certain claims involving dangerous condition, absent willful or malicious conduct). The problem is one of distinguishing between the landowner (the federal government/USFS forest land) and its agent, also a government agency with its employees doing allegedly sloppy work (USGS Interior/IGBST biologists). That, IMHO, in a very broad sweep protecting the entire freakin’ federal government, that was likely not intended.

    Don’t know whether this defense has been used by the feds in WY before, but the much larger implication is if the US government doesn’t charge an entry fee on its recreation land in WY, it simply does NOT owe a responsible duty of care to prevent negligent acts, and specifically to warn of ANY dangerous condition, activity, use, or structure. WOW!

    Think of the implications of this. So, if some FS or BLM employee fails to put up a barricade even on a known bridge or road washout you are on your own, as long as there was no fee charged for entry to the land. The result might be different in another state with no such recreational land statute equivalent to this one in WY.

    Query whether there is a way to distinguish whether IGBST trapper-biologists should get the immunity shield of the federal government for what may have been their sloppy work, failing to follow their very own protocols and procedure manual endangering the public?

    Also, wondering if the WY legislature would intend such a blanket exception for the evil federal government, and if this ruling stands (hopefully there is a basis for appeal on other grounds) might it result in subsequent amendment of the law to except the federal government from the shelter of liability under the law.

  3. avatar Wm Bova says:

    I did some research into tort claims against the Feds. Apparently the FTCA (Federal Tort Claims Act) prohibits the use of juries. District Federal Judges are obligated to make that decision. In the landmark case in Waco, a District Federal Judge impaneled an advisory jury to help with the decision. This went against the spirit of the law and did not go over well. That being said, it is very difficult to sue the Feds and win.

    My personal opinion still stands and I feel both sides were negligent. I think the Feds were a little more negligent as they did not follow their own protocol, but Evert certainly deserved as much of the blame for his blatant disregard of the danger he knew existed by following these biologists. I think Mrs. Evert is entitled to a nominal sum, but is not entitled to be enriched to the tune of $5M plus dollars.

    • avatar Sam Parks says:

      As we now know, Mr. Evert was mauled at trap site 3, taking a route he had taken for 30 years. He had previous knowledge only of trap site 2. It was based on a confused statement by a friend that IGBST originally claimed he had prior knowledge of the trap site where he was mauled. To say that he had a blatant disregard for the danger he knew existed is a little unfair, in my opinion. I agree this ruling is a travesty.

      • avatar Wm Bova says:

        Trap site #3 was well off the trail he normally took. He told his wife he was going to follow those guys and he did. He tracked their horses right up to the site. No unfairness about it, and his friend wasn’t confused.

    • avatar sleepy says:

      Juries don’t decide summary judgment motions in any case whether under the FTCA or not.

      Juries only decide disputed facts. They do not decide what the law is or what law applies.

      There were no disputed facts in this case, just whether or not a certain law applied.

      I’m not saying I agree with the ruling.

  4. avatar Salle says:

    Report of investigative team on Erwin Evert death in Kitty Creek (grizzly attack)

    http://www.thewildlifenews.com/2010/07/22/report-of-investigative-team/

  5. avatar Salle says:

    Investigation Launched Into Grizzly Bear Mauling of Botanist Outside Yellowstone National Park

    http://www.thewildlifenews.com/2010/06/22/investigation/

  6. avatar Savebears says:

    It is unfortunate, the He choose to pursue the team and he paid the ultimate price for his curiosity. It really does not matter which site he went to, he went with the knowledge that trapping operations were going on and had in fact asked about the signs he saw.

    Not often will I side with the government, but in this case, it was pretty straight forward what happened and what the outcome was.

    Remember the old saying “Curiosity killed the cat” This rings true in this case.

    • avatar Ida Lupine says:

      I agree – this man was a scientist, so it would be assumed that he would have more knowledge than the average hiker if signs were taken down, etc. Again, the bear was destroyed. I don’t think there is any danger of broader interpretation.

    • avatar SAP says:

      SB wrote that Mr. Evert ” had in fact asked about the signs he saw.”

      Yes, he did. And what was he told? Chuck Neal advised him to avoid places where he saw such signs.

      Can we surmise, then, that Evert had the expectation that any dangerous areas in the vicinity of bear traps would be signed and officially closed?

      The fact that the government has such signs, as well as policies and procedures for actually closing the areas around trapsites per the signs, indicates that the government knew that trapsites represented some level of danger beyond the normal “condition of the premises” danger of occupied grizzly habitat.

      The government acknowledges that trapsites are dangerous, so much so that they close the area around them to public use.

      Erwin Evert knew, apparently from his conversation with Chuck Neal, that he should stay out of the places WITH SIGNS.

      Erwin Evert did not enter a place WITH SIGNS telling him to stay out. He entered a place that had NO SIGNS, but did in fact have a male grizzly recovering from chemical immobilization.

      Best we can tell (again, based on Chuck Neal’s account), Mr. Evert expected that such a place would have a sign warning him away.

      2+2=3?

      • avatar Savebears says:

        SAP

        I live and work in Grizzly country, sign or no sigh, I am not going to let my curiosity get the best of me, do we really need a sign to let us know we are in danger?

        He knew trapping operations were going on, despite the fact that signs had been removed, he should have known better than to venture into the area, it is unfortunate that his actions lead to his death.

        It only takes a moment to make the wrong choice when you live in this environment.

        • avatar SAP says:

          I live & work in grizzly country, too. I accept the risks associated with free-roaming, wild grizzlies.

          However, if someone is going to hang a bunch of bait up in a tree or in a culvert trap, I sure would like some advance warning (say, 100 yards minimum) that I was about to blunder upon it. If someone is going to leave a bear to recover from Telazol, same story: it’s a different kind of risk from free-roaming bears just doing their thing. It’s a temporarily elevated risk at fixed point location, and should be signed as such.

          To paraphrase Bill Clinton, I guess it depends of what your definition of “near” is. If Erwin Evert was just supposed to stay the hell out of Kitty Creek til they stopped trapping there, they should have closed the whole drainage. The agencies didn’t close the drainage, they were just closing the immediate vicinity of the trapsites.

          How was he to know — until it was far too late — that he was “near” that trapsite that you argue he should have had the good sense to avoid?

          • avatar Louise Kane says:

            an assumption of the risk defense to negligence relies on the party knowing and comprehending the risk in order to assume that risk. while this is bear habitat and it can be argued that by hiking here you have assumed the risk of death or injury by bear attack I don’t believe that the one could argue that this particular hiker assumed this particular risk. To release a highly antagonized bear into an area where hikers are present introduces an additional risk and one that would not normally be associated with hiking in bear habitat. I think a clear duty existed to post about the trapping and research activities and to warn that bears might have heightened sensitivities to human presence. It would have been easy enough to post signs or restrict activities in that area. The point WM makes is well taken that the broad interpretation of immunity might be challenged.

        • avatar SAP says:

          I’ll give you a different scenario: Horse dies along a FS trail. FS doesn’t learn of it for couple of days, by which point three grizzlies are already using the carcass, so FS elects to close the trail rather than put staff at risk to go blow up the carcass.

          What if FS didn’t close the trail, just sort of put the word out that somewhere up Black Creek, past the guard station somewhere, there’s a dead horse on the trail with three grizzlies on it?

          By the logic of this ruling, FS really doesn’t have to do jack — they have an even lesser duty to the public because they didn’t actually create this hazard. Myself, I’m glad they signed the hell out of that trail, closed it, specified where the carcass was, and so on.

          In the case of a dead horse, the smell, the racket from scavenger birds, and the reaction of my horses would be a good warning that I was blundering into something risky. A trapsite? A recovering bear? There might be some smell. There wouldn’t be a congress of noisy corvids, though. You’d be on it before you knew it.

  7. avatar Savebears says:

    crap, its late, that should have been sign or no sign, not sigh!

  8. avatar Wm Bova says:

    Both parties contributed to this tragedy. Each of us has our own opinion as to who was more at fault. We’ll just have to agree to disagree.

    Wyoming is a comparative negligence state. If the Judge had not issued a Summary Judgement falling back on the State’s law on fee for use, then all parties would have been heard and the Judge would have to decide on the 51% rule as to who would win. It never got that far.

    Till the law is changed, then even a child who suffers the same fate may be subject to the ruling.

    Two people where killed in 2011 in Yellowstone (A fee for use Park). Could negligence have been construed in the second death because the sow was not euthanized after the first mauling death? I’m sure it could have, but the family probably felt it was a waste of time to sue the Feds.

  9. avatar WM says:

    I have given a little more thought to the immunity of a “landowner” under the WY statute.

    It would be interesting to know whether the plaintiff lawyers have explored, or in light of this ruling, on appeal would explore, the idea of distinguishing between the activities of the federal government (USFS land) as a LANDOWNER, and the activities of the IGBST.

    By definition, the Interagency Grizzly Bear Study Team (IGBST) is not engaged in owning or even managing land. It is a research agency comprised of state, federal and tribal interests for the purpose of gaining more knowledge of the grizzly bear. This activity, at least trapping on public lands including sedating them and pulling teeth, resulting in pissed off groggy bears as a consequence of your work, is an “ultra-hazardous” activity by its nature. It has absolutely nothing to do with owning land!

    There typically are higher duties of care when a person (or a government for that matter = person) is engaged in this kind of activity, an “ultra-dangerous” activity. In some states it is strict liability, and there is little protection for the alleged wrong-doer. It is mere coincidence that the trappers were federal employees of USGS (not USFS the land manager), and they should not be entitled to immunity.

    I don’t know whether IGBST uses trappers from the other participating agencies, but would the legal result have been different (immunity under the WY recreational land statute) if they had been employees of other participating entities of the IGBST, whose home agency was NOT the federal government, owner of the land?

    There is fertile legal theory ground to till here, in my view. Seems to me this broad blanket protection to the federal government was not intended under the law, and that should be explored.

    Whether Evert was comparitively negligent in his own demise is a question of fact, based on the evidence. I get the feeling from what is known, his representative has a good chance of prevailing on the facts for a wrongful death, if even only for a nominal damages award.

  10. avatar Louise Kane says:

    I wonder what the documents are that argue he knew about the trapping and why they pulled the signs early?

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