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January 03, 2012 9:04 am

U.S. asks for dismissal of grizzly death suit

Written by CJ Baker

The federal government is asking a judge to dismiss a suit that alleges its negligence led to a fatal 2010 grizzly mauling in the Shoshone National Forest.

In documents filed in Wyoming’s federal District Court on Friday, lawyers with the U.S. Attorney’s Office say Wyoming law gives the government immunity from the wrongful death suit brought by the widow of Erwin F. Evert.

Evert was killed by a grizzly bear on June 17, 2010, in the Kitty Creek area just east of Yellowstone National Park.  Evert apparently came upon the bear as it was recovering from tranquilizers administered by a federal research team that had collared and studied the bear earlier in the day.

The 70-year-old Park Ridge, Ill., resident owned a cabin in the Shoshone about a mile from the research site and had lived there seasonally for decades with his wife Yolanda.

In a wrongful death claim brought in October, Yolanda Evert alleged the Interagency Grizzly Bear Study Team, under the U.S. Geological Survey, negligently removed warning signs from the research site too early and in violation of federal protocols. That negligence, the suit alleges, led to Evert’s death.

However, in Friday’s response — filed by assistant U.S. attorneys Nicholas Vassallo and C. Levi Martin on behalf of the U.S. Attorney for Wyoming, Kip Crofts — the government says the Wyoming Recreational Use Act makes it immune from liability.

“The United States, as landowners of the Shoshone National Forest, owed no duty to warn Mr. Evert, who was hiking in the Shoshone National Forest,” the attorneys wrote, citing language in the Wyoming law that says a landowner “owes no duty ... to give any warning of a dangerous condition ... to persons entering for recreation purposes.”

A phone message seeking comment from Yolanda Evert’s attorney, Emily Rankin of the Spence Law Firm in Jackson, wasn’t immediately returned Monday, which was a federal holiday.

Evert, a botanist and a frequent hiker, had seen the research team that morning and told his daughter in a phone call that he was going to see what the men were doing, according to a 2010 federal report on the incident. He’d previously seen grizzly bear warning signs posted at another research site in the forest, but not those at the site where he met his death. On that June day, the two-man team had removed warning signs from the site as they cleared the area. Evert left his cabin for the site about a half-hour after the men left. One of the men later told federal investigators they’d taken the signs down because it was the last day of the study and they hadn’t seen anyone in the area in several weeks of working there.

However, in her complaint, Yolanda Evert said the signs were supposed to have been left up for three days and that the team violated federal research protocols in leaving before the bear was fully awake. She also said the study team members failed to tell all but one of the cabin owners about what they were doing in the area.

In its Friday filing, the government says it disputes many of the allegations in Yolanda Evert’s complaint. But even assuming everything she alleges is true — a requirement for seeking a dismissal — the Wyoming Recreational Use Act shields the government from suit, the assistant U.S. attorneys say.

The law was written to encourage landowners to let the public use their property. Property owners allowing public access are generally only liable for a “willful or malicious failure to guard or warn against a dangerous condition” the Wyoming Recreational Use Act says.

Stripped down, the allegations brought by Yolanda Evert “amount to nothing more than a complaint that federal employees failed to warn the public regarding a recovering bear in a remote area, almost three-quarters of a mile from even the nearest cabin. ... (T)hey are clearly insufficient to state a claim of ‘willful or malicious’ misconduct,” Vassallo and Martin wrote.

The attorneys also argue that Evert’s complaint fails “to describe circumstances where it was ‘obvious’ or ‘highly probable’ — as opposed to ‘possible’ — that harm would follow.”

The case has been assigned to U.S. Federal Judge Nancy Freudenthal in Cheyenne.

Yolanda Evert is seeking $5 million in damages.

11 comments

  • Comment Link January 03, 2012 10:09 am posted by Dave Bovee

    Not everything that happens is the fault of somebody with money. He chose to stay there; he chose to go look for a grizzly.

  • Comment Link January 03, 2012 10:44 am posted by Randi Reiter

    Go Yolanda, the USGS was at fault for removing signs, hope the judge does not dismiss.

  • Comment Link January 03, 2012 11:25 am posted by isabella vine

    Just like the government, isn't it? Protecting themselves from lawsuits so they don't have to be responsible or held liable for what they do, or cause to happen to citizens. Shame on the government! To basically say in court that nothing matters in the case because the government, though responsible for the tragedy, is protected from lawsuits; it is nothing short of a crime in itself!

  • Comment Link January 03, 2012 2:11 pm posted by Jacquie

    If the warning sign was supposed to stay up for 3 days and wasn't, then willful misconduct was certainly acted out. Also, I would say, by his own admission, that taking down a warning sign just because you hadn't seen anyone in the area, is reckless and irresponsible. I believe Mrs. Evert is entitled to some sort of settlement.

  • Comment Link January 04, 2012 7:31 am posted by tom tercek

    if we allow the suit the government will be forced to severely limit our access rights to public land to prevent lawsuits

    The lawyers are screwing up too many things for the rest of us.

  • Comment Link January 04, 2012 7:58 am posted by Leonard Harwood

    This kind of behavier by the Federal Government just makes it more likely that harm will come to Federal enforcement officers, and possibly others. People are not real fond of the Fed's, anyhow.

  • Comment Link January 04, 2012 8:07 am posted by Jo

    It is very unfortunate BUT Evert CHOSE to live there AND he was fully aware of the fact Grizzlys are in that area, that being said his widowed wife has no right to collect money from the Government, YOU CHOSE TO LIVE THERE, HELLO!!!!!!

  • Comment Link January 04, 2012 10:30 am posted by wyorez

    Nature is dangerous. Nature can kill. You know that going in. You accept that risk. Deal with it. Plain and simple. You don't like it? Bye!

  • Comment Link January 04, 2012 4:12 pm posted by Becky Wills

    He knew grizzlies lived in the area. That has nothing to do with the researches drugging a bear and leaving it to wake up pissed off and unfamiliar with its surroudings. It changes the normal behavior and the normal risk associated with living in bear country. They did not follow their own protocals. In my job I would be fired for such a terrible mistake. Why shouldn't they be accountable for such a tragic and needless screwup? Accountability!!!!

  • Comment Link January 06, 2012 8:21 am posted by wyorez

    "It changes the normal behavior and the normal risk associated with living in bear country"

    HAHAHAHA! That is both laughable and absurd at the same time. Educated and intelligent individuals all know that any wild animal, especially grizzly bears, are incredibly UNPREDICTABLE drugged or not! The only bit of normalcy is the fact that they are going to be unpredictable. People know that going in. Lawyers representing this case are the reason the public has to sign so many liability statements to breath and live.

  • Comment Link January 10, 2012 7:41 pm posted by Jim Frankenfield

    I think the lawsuit is silly and should be dismissed. However, I find it amusing that the USFS wants to argue as a landowner. They are a landowner in the sense of everyone else when it suits them, and when it doesn't they simply claim exemption. When it comes to property tax they are not a typical landowner.

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