WildEarth Guardians and the Western Environmental Law Center filed the lawsuit in federal court in Missoula on Thursday arguing BNSF and other railroads that use their tracks, including Amtrak, have been killing grizzly bears without an incidental take permit for decades. Such permits, required under the U.S. Endangered Species Act, allow a certain number of protected animals to be killed in exchange for efforts by a company to try to reduce the deaths.

BNSF Railway says that even though it doesn’t have a permit, it is taking measures to prevent grizzly bear deaths.

The railroad’s first efforts to obtain an incidental take permit began in 2004 and have still not been completed nearly 20 years later, the lawsuit filed by the wildlife conservation groups says.

“We are extremely disappointed that, after all these years, BNSF has refused to change its business practices to prevent the unnecessary deaths of Montana’s iconic grizzlies, resulting in the tragic deaths of three bears just this fall,” Sarah McMillan, Wildlife and Wildlands Program director at the Western Environmental Law Center in Missoula. “When a company chooses to operate in the epicenter of key habitat for a threatened species, it must take some responsibility to adapt practices to minimize its impacts on these animals.”

The tracks at issue in the case stretch between Shelby, Montana, and Sandpoint, Idaho, and between the Montana cities of Kalispell and Columbia Falls. The tracks also cross through two grizzly bear recovery areas: the Northern Continental Divide Ecosystem — which includes Glacier National Park and the Bob Marshall Wilderness — and the Cabinet-Yaak Ecosystem in northwestern Montana and northern Idaho. An estimated 1,000 grizzly bears live in the Northern Continental Divide Ecosystem while 50 to 60 bears live in the Cabinet-Yaak.

The railway’s June 2020 draft plan for reducing the number of grizzly bears killed was put out for public comment in January 2021, but it still hasn’t been approved by the U.S. Fish and Wildlife Service. The railroad seeks a seven-year permit allowing it to kill an average of 2.5 grizzly bears per year in exchange for efforts to reduce train strikes and to cut other human-caused deaths of grizzly bears elsewhere in the Northern Continental Divide Ecosystem.

BNSF, which is headquartered in Fort Worth, Texas, also said it expected grizzly bears to be removed from the endangered species list before the permit expires and left open the possibility of relaxing or modifying its terms if that happened. Montana asked the federal government to lift Endangered Species Act protections for grizzly bears in the northern Rocky Mountains in December 2021, and the Biden administration said in February that it would consider it.

The wildlife conservation groups filed their notice of intent to sue over the lack of a permit in October.

The railroad submitted its final plan last month, and the U.S. Fish and Wildlife Service expects to have a decision early next year, agency spokesperson Joe Szuszwalak said. The agency has not published the final plan submitted by BNSF Railway.

Despite not having a habitat conservation plan, BSNF Railway has implemented many of its proposed requirements, spokeswoman Lena Kent said in an email. Those include removing spilled grain and dead livestock and wildlife from the tracks; reducing vegetation that might attract grizzly bears; helping fund additional grizzly bear managers for the state and the Blackfeet Nation; buying radio collars, bear-proof garbage bins and electric fencing; and providing educational programs.

“BNSF believes that the current level of take due to train collisions is unavoidable,” the railroad said in its proposed habitat conservation plan. Therefore, its plan also calls for things like teaching hunters to distinguish between black and grizzly bears to help prevent accidental deaths elsewhere along with cleaning up winter kill along the railroad tracks each spring to avoid attracting hungry grizzly bears emerging from hibernation.

The lawsuit argues the railroad could do more, such as having trains slow down on curves and in narrow areas where grizzly bears may not be able to get away and reducing train traffic at dawn and dusk.

In its permit application, BNSF Railway argues slowing down isn’t practical because it would create choke points that would slow down the transportation of goods for thousands of miles around the permit area and that grizzly bears are hit by trains at all times of the day and night.

“BNSF’s goal is to eliminate avoidable grizzly bear mortality and maintain compliance with the Endangered Species Act,” Kent said.

The draft plan also sets aside $1 million to respond to any new information on the causes of grizzly bear deaths and any new technology that might be able to reduce them.

The lawsuit asks a judge to rule that BNSF Railway has violated the Endangered Species Act by not having an incidental take permit and to order it to cease killing grizzly bears.

If the incidental take permit is issued, Montana’s Outdoor Legacy Foundation would distribute the money set aside by BNSF as well as monitor the railroad’s efforts, executive director Mitch King said Friday.

“I’m very comfortable with BNSF’s role in this,” he said, acknowledging the railroad company has already taken efforts to reduce the deaths. “I think they’re doing as good a job as anybody can do.”

It’s not possible for the railroad to stop killing bears entirely, BNSF and King said.

“In a sad way it’s almost a good thing to have more of these issues because it means there’s more bears out there,” said King, who worked for the U.S. Fish and Wildlife Service for 30 years.