Bighorns, bears and bad blood

by Angus M. Thuermer Jr.

WyoFile.com

On Sept. 22, veteran Wyoming Game and Fish Biologist Bart Kroger climbed into a helicopter for an unwanted mission —  to shoot eight wild bighorn rams from the air.

He would fly over Owl Creek in Hot Springs County looking for 64 wild sheep that are part of the largest metapopulation in the contiguous 48 states. Some 3,800 animals live across the Absaroka and Owl Creek Mountains from Cody to the Wind River Reservation and beyond, a population that many sportsmen and other wildlife fans prize above all others in the state, if not the country.

About two weeks earlier Kroger had spotted the small segment of the herd from the air on Bureau of Land Management property. He had searched them out after hearing that domestic sheep had moved up the Owl Creek drainage and into bighorn territory.

His worry, and the worry of other wildlife managers, was that the two species might mingle and exchange germs. Some bacteria carried by and harmless to domestic sheep can cause pneumonia in their wild cousins and decimate a herd.

The eight rams Kroger was seeking that September day were the most likely to have wandered over open country to investigate their domestic neighbors. Game and Fish, in a decision that Kroger said went “all the way up to our director,” decided to kill the rams.

“The risk [of disease] was big enough that we needed to take action,” Kroger told WyoFile. “The need to take out eight rams for the good of the entire herd is what it came down to. Aerial gunning turned out to be the easiest way.”

In his nearly 30 years with Game and Fish Department, Kroger’s never heard of an order for such a large bloodletting, he said. On that September morning, Kroger, who would be the operation’s spotter, took off with a pilot and marksman. They flew for two hours.

“Unfortunately, we could not find those eight rams,” he said. “So, we ceased the operation.”

September’s kill order is one short chapter in a quarter-century-long clash between public wildlife values and private property rights in the Owl Creek area. The saga has traveled to the U.S. Supreme court; entangled multiple state and federal agencies; seen accusations of ransoming wildlife, counter charges of bureaucratic incompetence and overreach; and involved at least one investigation into the killing of a protected animal. The ongoing conflict involves grizzly bears, lions, conservation non-profits, a marquis compromise between wildlife managers and agricultural interests, demands for hundreds of thousands of dollars and fundamental questions about grazing, access and law enforcement rights. 

At its center is Frank Robbins, who bought the High Island Ranch west of Thermopolis in 1994.

Robbins’ Hay Creek Land and Cattle Co. LLC operates on private and public land that stretches from lowlands into the mountains. Robbins, who has Alabama roots, also bought the HD Ranch and the Owl Creek Land Co in the 1990s, according to reporting in 2003 by High Country News. Together, the properties encompass about 55,000 deeded acres, which are interspersed with public-land grazing leases of approximately the same size.

The holdings comprise a patchwork of unfenced private property intermingled with public lands, according to maps and descriptions provided by involved parties. In some instances, government employees must cross private property to reach federal land.

Soon after the purchases, Robbins became embroiled in a disagreement over a road easement across his property, according to a synopsis of the subsequent court fight published in Harvard Law Today. The Bureau of Land Management failed to immediately record legal documents for an easement and lost the access it had obtained from the previous landowner. Robbins claimed in court action that BLM officials began a pattern of harassment.

Spats erupted over private use of BLM roads, and the BLM charged Robbins with trespassing and interfering with federal officials — charges that led to a speedy acquittal. Reportedly helped by Cheyenne attorney Karen Budd-Falen, a staunch defender of western agricultural interests and a reliable critic of federal overreach, Robbins sued the BLM in 1998. That action ended up in front of the U.S. Supreme Court in 2006.

Filed under provisions of the Racketeer Influenced and Corrupt Organizations Act — RICO laws best known for their use in prosecuting organized crime —  the legal action claimed the federal agency was leveraging its various authorities to force concessions, including an easement, from Robbins. The Supreme Court in 2007 ruled against Robbins with one partial dissension.

The Property Rights Foundation of America fumed at the outcome in an article that mocked the court’s findings. “Continuous BLM Harassment to Extort an Easement is Merely a Lot of Separate Events,” its headline read.

Only Associate Justice Ruth Bader Ginsberg agreed with some of Robbins’ arguments. “Viewing the facts in the light most favorable to Robbins, BLM agents plainly violated his Fifth Amendment right to be free of … coercion,” Ginsberg wrote. 

Robbins didn’t get the damages or other relief sought by his suit, but the federal government didn’t get its easement either.

Robbins declined a phone interview and wrote that he would “probably not” answer a series of written questions WyoFile sent to him. WyoFile did not receive a response to a message left for ranch manager, and Robbins’ son-in-law, Josh Longwell. The public record — from news stories to court decisions to government memoranda and public hearings — document many of their positions.

According to an official BLM account, “grazing activity on the allotments ceased around 2005 due to litigation with the permits being officially canceled in 2007.” Robbins sought to regain the permits. Claiming that the grazing permits were too slow in coming, he wrote the BLM in 2012 that he would run domestic sheep on his property.

“Since you have decided not to return the permit in whole we have decided to go forward with sheep,” he wrote the BLM’s Worland office. “We have operated at 35% for years and will not wait on what is not going to happen.

“If and when a bighorn die-off occurs I want you to know that we feel we have done everything that we have been ask [sic] and been patient for years and you will have to answer for what happens.” 

The statement shows that Hay Creek Land and Cattle personnel “are well-aware of the domestic/wild sheep lethal-pathogen transmission issue,” Steve Kilpatrick, executive director of the Wyoming Wild Sheep Foundation, wrote WyoFile. But Robbins has rejected any notion that he is using the domestic sheep as leverage to attain concessions from regulating agencies.

He chose to run sheep because that stock would be “best for this ranch and this family,” he wrote the BLM in 2012. “We did not make this decision for negotiating purposes.”

Hay Creek Land and Cattle incorporated domestic sheep into its operations beginning in 2013, according to a document Robbins signed with the Wild Sheep Foundation. Despite differences, the wild sheep group has worked with the Robbins operation and others to find solutions that would satisfy all, Kilpatrick told WyoFile.

An agreement signed in 2016 called on the wild sheep group to pay $14,000 for water infrastructure for the stock in the Blondie Pass pasture — a place separated from the bighorns. At that point the Hay Creek sheep herd had swollen to 1,500 head, Kilpatrick wrote — triple the initial stocking of 500. The additional water, funded by the conservations, was intended to accommodate the domestic sheep in a safe area and “prevent/minimize comingling…” with wild sheep.

In return, Robbins agreed to restrict sheep grazing to that pasture, according to the agreement. The document said the ranch company would work with Game and Fish on a grazing plan and the wildlife-stock mingling issues if the ranch needed to move its sheep closer to the bighorns.

But the agreement was only valid for one year. Efforts to strike a longer-term compromise went nowhere, Kilpatrick said. The domestic sheep herd has since grown larger.

Meantime, predator conflicts, which have simmered for years, erupted in 2018. By then grizzlies had moved to within about 30 miles of Thermopolis and across grazing range used by Hay Creek, according to Game and Fish maps. That’s about 30 miles farther east than grizzlies ranged three decades before.

Ranch operators submitted a predator damage claim, their first, to the state in 2012, seeking $6,000, according to reporting in the Wyoming Livestock Roundup. Wyoming compensates landowners for losses caused by wildlife under various conditions and circumstances. HD Ranch operators increased their claims to $23,000 in 2013, then to $88,000 and $110,000.

Longwell submitted a $422,971 claim for damages after grizzly bears and mountain lions killed more HD Ranch stock in 2018. Game and Fish pays damage claims on losses confirmed by wildlife officials. Depending on circumstances, officials can multiply the confirmed kill number by a factor that seeks to account for unverified but probable losses.

Longwell claimed “damage” to 400 calves, two steers and 117 sheep. Longwell applied multipliers to the verified losses — sometimes a multiplier of 20 — that Game and Fish personnel said went beyond what’s allowed by regulation. 

Using its official formulas, Game and Fish staffers agreed to $89,498 in damages. Unsatisfied, Longwell appealed to the appointed citizen Wyoming Game and Fish Commission in July. “This is peanuts, what you are offering me,” he told commissioners.

Longwell railed at the board in a speech that ran more than 45 minutes. He scolded the state for inaction in the face of grizzly predation, mocked commission members’ green sport coats that “look like you won a golf tournament” and passionately argued for his private property.

“I’m not pulling this stuff out of a hat,” he said of his numbers and claims. “It’s actually probably under what you owe me.”

Longwell told of tiresome hours spent scouring the ranch and nearby grazing lands for losses. “We don’t find ’em all,” he said. “It’s like looking for a needle in a haystack.” Ranch hands beat the willows in search of dead stock, he said.

“Somebody’s going to get killed,” probing like that, he told commissioners. Grizzlies are so thick “we had bears killing bears,” he said. “It’s bears everywhere.” 

Yet Wyoming tiptoes around the issue, Longwell told the commissioners, trapping bears and moving them, giving some individuals chance after chance.

In 2018 observers saw 78 grizzlies in a grizzly census unit closest to Hay Creek Land and Livestock operations. Ten of the grizzlies near Owl Creek were mothers with cubs.

The survey only accounted for bears in the heart of their range, a zone called the DMA or demographic monitoring area. That extends into upper Owl Creek, but bears live far beyond.

Game and Fish recorded 12 grizzly conflicts in the Owl Creek area in 2018. It captured at least three grizzly bears in Hot Springs County in 2018 — all for cattle depredations. One was “removed,” the other two moved.

Wyoming was set to hunt grizzlies — including around the Hay Creek ranches — starting in the fall of 2018. But a suit halted the plan and placed the species back under federal protection. Had the hunt occurred, hunters could have killed a dozen grizzlies in and around the Hay Creek operations.

Longwell told Game and Fish commissioners he doesn’t want to see all bears killed, but that they belong in the high country, not on his ranch and private property. The night after one branding operation that involved 25 children, “we had 14 dead sheep … right next to the house,” he said.

“Not in my back yard,” he said of grizzlies. “Not where my kids play.”

He’s taken action, he said.

“Two weeks ago, three weeks ago, I killed a grizzly [by] accident,” he told commissioners in July. “Didn’t mean to — I thought it was a black bear — middle of the night.”

“I saved the State of Wyoming $100,000,” he said. Yet “I’m under investigation by the feds” for killing a protected animal. 

What Wyoming is doing is against the U.S. Constitution, Longwell told the panel of largely silent commissioners. “You’re taking my private property for the use of the public.”

“Let’s do something,” Longwell said.

Game and Fish commissioners did act. They voted unanimously on July 19 to award Longwell the $89,498 staff recommended — $333,473.66 less than what Longwell sought.

The Wyoming Stock Growers Association believes the agency ratios are well established and accepted, said Jim Maggagna, the group’s executive vice president.

“We certainly support the Game and Fish Department in reimbursing according to that [official] ratio,” he told WyoFile. “I’m not saying that’s equitable. That’s simply what it is today. ”

A couple of weeks after the Game and Fish vote, wild sheep advocate Kilpatrick got news from Longwell that more sheep were on the way, Kilpatrick said. “In early August 2019 I was informed by Josh Longwell that they have increased their domestic sheep herd to 3,500 and they intended to move a portion of the herd “up county” — i.e. closer to bighorn sheep,” he wrote WyoFile. “I requested a field trip…”

That movement of stock toward the bighorns is what got Kroger, the Game and Fish biologist, involved. On his first sheep-survey flight in September, he saw the domestic sheep within 3.5 miles of the bighorn herd, he said.

“It’s fairly open country,” Kroger said. The bighorns, “they could actually see those domestics.” Kroger saw the bighorns on public land, the domestic sheep on private land, he said.

The development set up potential contact between the two species. The risk was highest among bighorn rams, which are “a little bit more curious,” than ewes, Kroger said. “They’re going to come down,” he said, “they’re going to go investigate.”

The Absaroka bighorn population — which consists of five herds —  is a “core” population that’s never been extirpated from its home range, according to the Wyoming Bighorn/Domestic Sheep Plan — a widely lauded compromise between wildlife and agricultural interests that has been adopted into law. The metapopulation holds two-thirds of Wyoming’s bighorns — up to 4,500 individuals at times.

Biologists already considered the mega-herd a “dirty” group that harbors pathogens, Kroger said. It’s also more resistant to some infections, compared to other groups of bighorns. Nevertheless, worries that disease — widely accepted in scientific circles as the single largest existential threat to bighorn sheep populations — might run rampant among the wildlife remain serious, and so Kroger took off for his aerial kill mission.

Today the BLM is considering issuing new grazing leases that could settle some elements of conflict. It’s analyzing a 10-year cattle-grazing permit to Hay Creek Land and Cattle that would involve 28,493 acres of BLM lands intermingled with the Robbins’ family’s private property.

It’s already approved 28,651 acres of leases, some of which domestic sheep could use, on BLM land lower in elevation and farther from the bighorns.

It’s uncertain whether a cattle-grazing permit would encourage Hay Creek Land and Cattle to prioritize cows over domestic sheep in the areas near bighorn habitat or whether ranch economics would preclude such a shift. Robbins wouldn’t say.

Many of the “up-country” BLM grazing allotments now under scrutiny are located within areas where federal plans call for no domestic sheep grazing, the Wyoming Wild Sheep Foundation said in comments to the BLM. Keeping the species apart is the group’s principal objective, Wyoming Wild Sheep Foundation President Kurt Eisenach wrote.

Because of the patchwork pattern of land ownership, “it’s impossible [for stock] to stay only on private land,” Kilpatrick said. Consequently, the wild sheep group asked the BLM for a grazing plan that would incorporate both private and public land. That’s a type of permitting the agency has used before. But for upper Owl Creek, the government will consider a plan that covers only BLM land, said Sarah Beckwith, public affairs staffer with the BLM Wind River/Bighorn District in Worland.

The local representatives for the Wyoming State Grazing Board in Worland supported Hay Creek Land and Cattle. Dick Loper urged the BLM to issue “economically feasible” permits and to do so with a minimum of environmental review, where appropriate.

“Game and Fish would like to keep me from getting that permit,” Robbins said in a brief telephone conversation.

A Game and Fish spokeswoman said her agency did not comment on the BLM grazing proposal and if it does, it would write a formal response. “We’re not in the business of closing down grazing, by any stretch,” said Rebekah Fitzgerald, communications supervisor for the agency. “We always work with the Forest Service or BLM when asked.”

The BLM wants input from the U.S. Fish and Wildlife Service before it issues the grazing permits, which are expected sometime in 2020. Fish and Wildlife will consider what effect cattle grazing might have on grizzly bears, classified as threatened under the Endangered Species Act.

“This is a key component that needs to be incorporated,” the BLM’s Beckwith said. The “consultation” with Fish and Wildlife could result in conditions or stipulations designed to prevent conflicts and protect both cattle and bears. 

The sheep issue, however, remains a conundrum, Stock Growers’ Magagna said. According to Magagna, Longwell told him the two species were “never near” one another and he was worried about the Game and Fish plan to kill the eight rams.

“He was upset they were going to remove those bighorns and hold it against him,” Magagna told WyoFile.

“I talked to Game and Fish about it,” Magagna said. Without more analysis, he told WyoFile, it’s hard to say who’s right.

“The core native herd [of bighorns] needs to be protected — that becomes the priority,” Magagna said. “We certainly support Game and Fish in protecting that herd. I can’t really say removing those eight head was a necessary step …. On private land, I would defend the right of the landowner,” he said.

The conflicts at Owl Creek continue to test parties on both sides. “Civil discourse, that seems to be challenging,” Magagna said.

The next scheduled discourse on the damage claim is set for Jan. 27 in Thermopolis when an arbitration panel will hear Longwell’s damage claims and the Game and Fish Department response. Meantime, Game and Fish is considering options for the bighorn herd, including increasing hunting in the Owl Creek area to reduce the chance of mingling.

The strife appears to have stretched the imagination of parties on both sides of a conflict between wildlife and private property.

Longwell told Game and Fish commissioners about a long-ago conversation with a now-retired wildlife official who said grizzlies would never range as far as they are seen today. Twenty-five years later, that’s proved wrong, he told them.

When Kroger got into the helicopter for the unsuccessful shooting mission, he, too, was experiencing the unprecedented. “I didn’t get into this vocation to do things like that,” he said. “But that’s, I guess, part of some situations you’re probably going to be put into as a manager for wildlife. It’s not a good feeling.”