Alaskans have grounds to sue over predator-control killing of bears, court rules
A bear sits in the grass in 2023 in Katmai National Park and Preserve. A state predator control program aimed at helping the ailing Mulchatna caribou herd may have killed bears that use the national park, thus affecting people who enjoy Katmai bear viewing and giving them legal standing to challenge the state program, the Supreme Court said. (Photo by F. Jimenez/National Park Service)
Alaskans who enjoy watching bears and other wildlife have legitimate grounds to sue the state over predator-control programs that may put those same animals at risk, the Alaska Supreme Court ruled on Friday.
The ruling reinstating a lawsuit, dismissed earlier by a Superior Court judge, that challenged a state program that is killing bears and wolves to try to boost a faltering Western Alaska caribou herd.
Michelle Bittner, the Anchorage attorney who filed the lawsuit in 2023, does have legal standing to challenge the controversial program that has killed nearly 200 bears so far, the Supreme Court found.
Standing, in legal terms, is the authority to challenge an action or law in court.
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Bittner argued that her visits to Katmai National Park and Preserve, a destination famous for its brown bears and bear-viewing opportunities, gave her sufficient authority to sue in court to overturn the state's predator-control program aimed at helping the Mulchatna Caribou Herd.
At a hearing last summer, Bittner told the justices about her feelings about wildlife, her experiences at Katmai and her understanding, from talking to park staffers, that the Mulchatna predator control program had killed some of the bears that roam into the park.
The Supreme Court agreed that Bittner's travels to Katmai and her attachment to the bear-viewing experience there gave her standing to sue the state.
'We hold that because the resident returned to Katmai National Park after the bear population was allegedly reduced by the State's program, she has alleged an injury to her interest in viewing bears there sufficient to demonstrate standing,' the decision said.
The justices rejected the state's argument that Bittner lacked legal standing because she did not travel to the exact area where the bear- and wolf-culling program was carried out. 'As long as it is plausible that the harm caused by the predator control program extends to the area of Katmai that Bittner visited, her allegation is sufficient to support interest-injury standing,' the ruling said.
Bittner's complaint had been dismissed on Oct. 31, 2023, for lack of legal standing.
The court did not rule on the merits of Bittner's case against the Mulchatna bear-culling program. Instead, it sent the case back to the Superior Court level to sort out those questions.
Tim Peltier, a regional supervisor for the Alaska Department of Fish and Game's Division of Wildlife Management, declined to comment on the Supreme Court ruling. He cited the case's status as active litigation.
Bittner's lawsuit was one of two filed in 2023 that sought to overturn the Mulchatna predator-control program. The other lawsuit was filed by the Alaska Wildlife Alliance. That case is still pending in Superior Court and is before the same judge who dismissed Bittner's complaint in 2023. Oral arguments in that case are set for March 3.
The Alaska Board of Game authorized the Mulchatna predator-control program in 2022. In May and June of 2023, the department killed 94 brown bears, five black bears and five wolves, carrying out the program's first year of operation. In its 2024 operation, the department killed another 81 bears and 14 wolves. The program is authorized to continue to 2028.
The program is highly controversial.
The Alaska Department of Fish and Game has argued that it is needed to help a caribou herd that crashed from a peak of about 200,000 in 1997 to less than 13,000 in recent years. Hunting for Mulchatna caribou was closed in 2021.
The goal is to get the caribou population back up to at least 30,000, according to the department. Removing predators that feed on caribou, especially on caribou calves, is a tool to help achieve that goal, the department has argued.
Peltier, commenting by email, said the effects of last year's predator control work is still being studied, 'however at this point it appears that the treatment had a positive effect.'
'Our intention is to repeat the treatment this spring for the third year and to continue to assess the effects,' he said by email.
But several scientists argue that factors other than predation, mostly a habitat transformation caused by climate change, are behind the Mulchatna herd's decline.
Among those changes is the spread of woody shrubs to an area once dominated by open tundra. The vegetation changes have benefited moose, which have boomed in population, because moose feed on those shrubs. But they harm caribou, which depend on lichen and other tundra plants.
Other factors cited by biologists as contributing to the herd's decline include the freeze-thaw cycles that have become more common with climate change but create difficult, icy conditions for caribou, outbreaks of brucellosis, a bacterial disease, and illegal hunting,
The way that the Alaska Board of Game approved the program is also at issue in the two lawsuits. Bittner and the Alaska Wildlife Alliance allege that the approval was rushed and failed to provide adequate notice for public comment.
Bittner disagreed with the department's suggestion that the bear and wolf kills carried out to date have helped the herd. Numbers are about the same now as they were previously, she said.
She said Gov. Mike Dunleavy should instruct Doug Vincent-Lang, the commissioner of the Department of Fish and Game, to pause the program until the legal case is resolved. 'Otherwise, Alaskans, the country, and the world will know that over 200 bears and countless wolves were killed on his watch when bears and wolves are declining all over the country and the world,' she said by email.
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