Dell Creek elk feedground permit expired, judge rules


SUBLETTE COUNTY – Feeding tons of hay to wild elk wintering around the Dell Creek feedground in Bondurant – to keep them out of privately owned haystacks – might not happen this year due to a Sept. 21 court decision and an apparent Wyoming Game and Fish oversight.

The Dell Creek feedground is one of two Game and Fish winter elk feedgrounds in Sublette County’s Hoback Basin. The other is the McNeel feedground on private beside the Hoback River land leased by Game and Fish.

The Dell Creek feedground, however, is on Forest Service land and its use must be permitted and analyzed for environmental impacts.

Both feedgrounds are located very near cattle ranches and private homes with livestock. Before the winter feeding begins, which is held back until elk consume available forage or too much snow falls, herds often move into the stockpiled hay and alfalfa.

Dell Creek feedground

Wyoming’s U.S. District Judge Nancy Freudenthal issued her ruling on Sept. 21 in the 2020 civil complaint filed by Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates and Gallatin Wildlife Association. The coalition argued the Forest Service and Game and Fish agreements at Dell Creek feedground in Sublette County, Forest Park in Lincoln County and Alkali in Teton County should not be allowed to continue with current permits or without more environmental analysis.

They also highlighted gathered elk herds as potential pathways to spread the dreaded chronic wasting disease. CWD has not been found in the Hoback Basin herd but the coalition argued it was only a matter of time.

In her decision, Judge Freudenthal examined the Forest Service’s administrative record and ruled the Game and Fish did not properly request continued use at the Dell Creek location between 2016 and now. Although the Forest Service referred to its continued use by Game and Fish, the state wildlife agency did not officially request its continued use beyond that one year.

“The one-year (special use permit BPY100217) for Dell Creek feedgrounds expired by its terms notwithstanding USFS’s acknowledgement to the contrary,” she concluded.

Whether or not her decision will be appealed was still up in the air last week as Forest Service and Game and Fish officials conferred with attorneys about their next moves. 

Permits, CWD

Judge Freudenthal examined their arguments that the three feedgrounds are not properly permitted because Forest Service decisions are faulty and lack proper environmental analyses for the sites.

“As additional background, this Court (in 2018) previously vacated and remanded the USFS’s decision to reauthorize feedground activities at Alkali Creek based on its failure under the National Environmental Policy Act (NEPA) to consider the science regarding CWD risk, transmission and mitigation,” she wrote. “The instant case not only concerns the Alkali Creek feedground once again, but also challenges the continuation of supplemental feeding at the Forest Park and Dell Creek feedgrounds.

“More specifically, the petition challenges: (1) the approval of the Wyoming Game and Fish Commission’s request to resume feeding operations at Alkali Creek without first conducting the environmental analysis previously ordered by this Court; and (2) the agency’s indefinite authorization of artificial feeding at Dell Creek and Forest Park feedgrounds without issuing the requisite special use permit under the USFS regulations or conducting any environmental analysis under NEPA.”

Judge Freudenthal agreed with the coalition that environmental analyses were lacking for effects of continued winter elk feeding in light of CWD, a disease spread by prions, unnatural proteins that can pass through an animal and remain viable years later in soil and forage.

“While there were no CWD detections at Forest Park, Dell Creek or Alkali Creek to date, there is no dispute that ‘congregating elk at very high densities at feedgrounds is likely to increase the spread of disease because of an increased number and rate of potential infectious contacts with infected individuals and an infected environment,’” she wrote, adding CWD “surrounds the feedgrounds at issue in this case.”

Forest Park, Alkali

In the Sept. 21 ruling, the judge said the Game and Fish Commission properly applied for a permit for the Forest Park feedground. The feedground can operate under its current permit because the Forest Service has not made “a final agency decision” for her to rule for or against, she wrote.

In 2018, the judge had remanded the Alkali Creek permit for emergency feeding only to the Forest Service, requiring it to examine impacts of its permits for environmental assessments. During the more recent suit, she allowed a stay so both sides could negotiate. Both returned with briefs to support oral arguments in July.

The judge remanded Game and Fish’ emergency feeding permit at Alkali to the Forest Service. Bridger-Teton National Forest public information officer Mary Cernicek said Department of Justice attorneys were examining the order. 

Questions

Will Dell Creek feedground be closed down this winter after almost 50 years in its Riling Draw location?

Will the Wyoming Game and Fish Commission request a new permit for Dell Creek?

Has the Forest Service gathered enough information for a proper environmental assessment and analysis of its effects at these feedgrounds – particularly to CWD, which has not been found in the herd, and brucellosis, which has – in light of Judge Freudenthal’s 2018 court order and again this month?

If the Forest Service did not in fact begin its NEPA analysis as ordered, why not and how long will this take?

If the Dell Creek feedground is not allowed to operate this coming winter, how will Game and Fish help keep elk out of livestock owners’ hay and alfalfa stackyards at the Little Jennie Ranch, Campbell Cattle Company and other Basin ranchers?

How do these decisions affect Game and Fish’s current public and stakeholder collaboration to look ahead at a new winter elk-feeding management plan?

Wyoming Game and Fish spokeswoman Sara DiRienzo said officials called meetings to determine what’s next for this winter’s elk feeding at Dell Creek and possible options to proceed.

Forest Service’s Cernicek said officials met last Thursday and the Department of Justice is examining the order and options.

Closed?

Passed earlier this year, House Rep. Albert Sommers’ HB 101 addresses the process for an elk feedground’s closure – the issue would come to the Joint Wildlife, Recreation ETC Committee, a report required and a governor’s signature are required.

Whether or not this process might apply to this coming winter at the Dell Creek feedground – where supplemental feeding often starts in November due to heavy snowfall – is also as yet unknown.

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