Judge rules for government in bear mauling suit

Posted 10/25/12


Yolanda Evert, the widow of the late Erwin F. Evert, had claimed that two trappers’ decision to remove warning signs around a bear recovering from their studies and otherwise warn the public led to her husband’s mauling by the animal on …

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Judge rules for government in bear mauling suit


Wyoming law protects government from liability

A U.S. District Court judge has denied a wrongful death claim that alleged negligence by federal grizzly bear researchers caused a man’s fatal 2010 mauling in the Shoshone National Forest.



Yolanda Evert, the widow of the late Erwin F. Evert, had claimed that two trappers’ decision to remove warning signs around a bear recovering from their studies and otherwise warn the public led to her husband’s mauling by the animal on June 17, 2010.

However, Chief U.S. District Court Judge Nancy Freudenthal in Cheyenne ruled Tuesday that the crew with the Interagency Grizzly Bear Study Team had no duty to give any warning of the dangerous bear under Wyoming law and that it was not obvious to the researchers that Evert would follow their footsteps and enter the trap site.

Freudenthal’s summary judgment in favor of the government closes a case filed a year ago.

Yolanda Evert, of Park Ridge, Ill., was represented by Emily Rankin and Mark Aronowitz of the Spence Law Firm in Jackson, and the government by the office of U.S. Attorney Kip Crofts.

“We are evaluating the court’s decision and considering the family’s options going forward,” Rankin said Wednesday.

Erwin Evert and his wife had lived seasonally in a cabin in the North Fork’s Kitty Creek area for decades. Evert, 70 years old at the time of his death, was a botanist and a regular hiker of the Kitty Creek drainage.

About a week before the incident, Evert had come across one of the research team’s signs — at a separate site — warning that dangerous bears lay ahead. Yolanda Evert testified at a deposition that when her husband saw the sign, he had immediately turned around and gone home.

Erwin Evert later asked his long-time friend, Cody naturalist Chuck Neal, what the signs meant. Neal warned Evert that some kind of bear trapping might be under way and advised him to “just to stay away from there.”

Evert, according to Neal’s recollection, agreed.

On June 16, Evert had been in Bozeman, Mont., and stopped by the U.S. Geological Survey’s office to discuss his new book. While there, he asked whether the Interagency Grizzly Bear Study Team was currently conducting trapping operations and was told they were.

The following morning — the day of the mauling — Evert told his daughter he hoped to catch up with the two researchers in the area to find out what they were doing.

Evert regularly hiked the Kitty Creek area, but that day, “for reasons unknown, Mr. Evert departed nearly half a mile from his usual hike,” Freudenthal wrote in her decision. Evert left the main trail and followed the path made by the team’s horses up a decommissioned spur.

About a half-mile up, Evert reached the spot where the USGS crew had trapped, tranquilized, studied and released a 430-pound grizzly bear.

One of Yolanda Evert’s expert witnesses, bear biologist Wayne McCrory of McCrory WIldlife Services Inc., said the bear was likely antagonized by its experience with the researchers. McCrory speculated that the attack began with a very close surprise encounter and a brief flight by Evert.

All that’s known for certain is that the male grizzly killed Evert. The bear was killed two days later.

There had been about a half-dozen warning signs posted along the route Evert took to the trap site, but they all had been removed by USGS trappers Chad Dickinson and Seth Thompson shortly before Evert arrived.

As they left the site, known as site #3, Dickinson and Thompson opted to pull down the warning signs. It was the last day of their three weeks of work in the area. They hadn’t seen anyone on that spur — and few people on the trail — and the weather that day was just above freezing, with snow and wind gusts of up to 34 miles per hour.

With those factors in mind and bear #646 showing signs of recovering from the sedatives, the team opted to remove the signs and head out.

The trappers had spoken with only one of the cabin owners about what they were doing in the area, though few were living in the cabins at that time. The media was not notified of the trapping.

Yolanda Evert testified at a deposition that had the researchers told her husband they were trapping bears, “he would have never gone up there.”

She also faulted the trappers’ decision to pull the signs.

“I mean, who would know that it was dangerous to go in if there was no sign,” Yolanda Evert said.

McCrory, the plaintiff’s expert, opined that Dickinson and Thompson “put their own predetermined personal agendas ahead of public safety, as they wanted to end their hitch (10-day stint) and not have to return to the area some days later just to remove the closure/warning signs.”

The government had not yet submitted reports from its own experts and now will not need to. But in a September filing, Assistant U.S. Attorneys Levi Martin and Nicholas Vassallo, argued on the government’s behalf that the facts “do not support the theory that the USGS team should have reasonably anticipated someone would be hiking that day half a mile off of, and uphill from, the trail/decommissioned road in blowing, snowing cold weather.”

Martin and Vassallo said the conditions made it “far from obvious — indeed, it was highly unlikely — that an encounter and fatal mauling would occur.”

In issuing judgment for the government, Freudenthal concurred.

“(I)n light of the remoteness of the trap site, the inclement weather, the lack of off-trail human presence during the time at issue, the extended presence of five signs along the access route to sites #1 (further up the spur) and #3, and the anticipation that bear #646 would soon recover, it was not obvious to the government that a hiker would intentionally follow their tracks into site #3 shortly following the team’s departure, resulting in a bear mauling,” Freudenthal wrote.

Under Wyoming’s Recreational Use Act, any property owner who allows their land to be used for recreational purposes free of charge — in this case, the government — generally has no duty to keep an area safe or warn of a dangerous condition. Because of that immunity, Aronowitz and Rankin had to show it was obvious to the trappers that their actions would lead to a mauling.

The government had asked Freudenthal to find that Evert knew the risk of being mauled, but she did not do so.

“(T)he undisputed facts are insufficient to conclude that (Evert) knew about, or could appreciate the risk of encountering a recently-released, recovering grizzly bear by simply following the researchers’ tracks off the Kitty Creek Trail where no closure signs or warning notice were present,” Freudenthal said.

After the mauling, an interagency panel of bear experts who reviewed the incident made a list recommendations. They include:

• that bear signs be posted according to a standardized, written protocol and made uniform; that they be posted at possible access routes to a site and that they remain up for at least three days after capture operations end

• the use of automatic cameras to document what happens when crews aren’t there

• using reversible tranquilizers so bears can recover more quickly

• having trapping crews check and log the posted signs

• notifying the public and media when bear trapping is occurring

In a 1993 manual for bear researchers and managers included with federal investigators’ report, author James Jonkel wrote that “future court suits involving bears, the public, bear managers and researchers are inevitable.”

“Therefore, it is important to document every aspect of every management situation and trapping episode. Bear researchers and managers must make careful decisions and always warn the public when a trap has been placed in the vicinity or where there is a potential for a confrontation,” Jonkel wrote. “Education and communication are the best tools when working with the media and the public.”

Editor's note: This version corrects how soon after the mauling the bear was killed.