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.