National Wildlife Federation, Great Bear Foundation v. Burlington Northern Railroad, Inc.

Opinion by Judge GOODWIN.

The National Wildlife Federation and Great Bear Foundation (collectively referred to as “NWF”) appeal the denial of their motion for a preliminary injunction in their action against Burlington Northern Railroad, Inc. (“BN”) under the Endangered Species Act’s (“ESA”) citizen suit provision, 16 U.S.C. § 1540 (g)(1).

NWF claims that BN violated the ESA by modifying grizzly bear feeding behavior through a series of accidental corn spills along BN tracks in northwestern Montana. NWF also alleges that BN violated the ESA when BN trains struck and killed seven grizzly bears, allegedly attracted to the food supply at the spill sites.

We agree that the bear fatalities constituted a prohibited “taking” within the meaning of the ESA- We now must decide whether the NWF carried its burden of demonstrating enough likelihood of irreparable jfuture injury to grizzly bears to justify judicial intervention in the form of an injunction. The district court held that NWF did not. We affirm.

I.

In the winter of 1988-89, three Burlington Northern trains carrying grain derailed on a four-mile stretch of track south of Glacier National Park in northwestern Montana. A total…