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Alliance for Wild Rockies v. United States Dep't of Agriculture

United States Court of Appeals, Ninth Circuit

November 20, 2014

ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES ANIMAL AND PLANT HEALTH INSPECTION SERVICE, an agency of the U.S. Department of Agriculture; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; LESLIE WELDON, in her official capacity as Regional Forester of Region One of the U.S. Forest Service; UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior; UNITED STATES NATIONAL PARK SERVICE, an agency of the U.S. Department of Interior; CHRISTIAN MACKAY, in his official capacity as Executive Director of the State of Montana Department of Livestock, Defendants-Appellees, and BILL MYERS, Intervenor-Defendant-Appellee

Argued and Submitted, Seattle, Washington: November 8, 2013.

Page 593

Appeal from the United States District Court for the District of Montana. D.C. No. 9:11-cv-00076-CCL. Charles C. Lovell, Senior District Judge, Presiding.

Environmental Law / Standing / Mootness

The panel affirmed in part and reversed in part the district court's judgment in favor of federal and Montana state agencies and officials in an action brought by Alliance for the Wild Rockies, challenging the decision to permit recurring, low altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone.

To minimize disease transfer between wild bison and cattle in the Greater Yellowstone Area, the bison are managed, in part, according to an Interagency Bison Management Plan which includes using hazing operations to move the bison. The Yellowstone grizzly bear also inhabits the same area, and is listed as a threatened species under the Endangered Species Act. Under Section 7 of the ESA, the National Park Service prepared biological evaluations for the management plan which were approved by the United States Fish and Wildlife Service, and concluded that the helicopter hazing operations would not adversely affect the Yellowstone grizzly. Section 9 of the ESA prohibits the " taking" -- which can include harassing -- of an endangered or threatened species.

The panel reversed the district court's holding that Alliance lacked standing to bring its ESA and National Environmental Policy Act claims. The panel also reversed the district court's ruling that Alliance failed to comply with the ESA citizen suit 60-day notice provision. The panel affirmed the dismissal of all of Alliance's ESA claims against the United States Animal and Plant Health Inspection Service and Fish and Wildlife Service because they were not included in the 60-day notice on which Alliance relied.

The panel held that Alliance's ESA Section 7 claim was moot because the federal defendants had already completed a second biological evaluation consultation addressing the impact of helicopter hazing on the Yellowstone grizzly bears, and affirmed the district court's grant of summary judgment to the federal defendants and grant of dismissal to Montana on the claim. The panel also affirmed the district court's grant of summary judgment to the federal defendants and grant of dismissal to Montana on Alliance's ESA Section 9 claim because no genuine issues of material fact existed in the record concerning whether a take of a Yellowstone grizzly bear had occurred or was likely to occur. Finally, the panel affirmed the grant of summary judgment to the federal defendants on the NEPA and National Forest Management Act claims.

Rebecca K. Smith (argued), Public Interest Defense Center, PC, Timothy M. Bechtold, Bechtold Law Firm, PLLC; Missoula, Montana, for Plaintiff-Appellant Alliance for the Wild Rockies.

Thekla Hansen-Young (argued), Trial Attorney, Robert G. Dreher, Acting Assistant Attorney General, Andrew C. Mergen, Trial Attorney, Robert J. Lundman, Trial Attorney; Environment & Natural Resources Division, United States Department of Justice; Washington D.C., for Defendants-Appellees United States Department of Agriculture, United States Animal and Plant Health Inspection service, Leslie Weldon in her official capacity as Regional Forester of Region One of the United States Forest Service, United States Department of the Interior, United States Fish and Wildlife Service, and United States National Park Service.

Robert Stutz, Assistant Attorney General, Agency Legal Service Bureau, Montana Department of Justice; Helena, Montana, for Defendants-Appellees Montana Department of Livestock and Christian Mackay.

John E. Bloomquist and Rachel A. Kinkie, Doney Crowley Payne Bloomquist, P.C., Helena, Montana, for Intervenor-Defendant-Appellee Bill Myers.

Before: Mary M. Schroeder, Richard A. Paez, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Paez.

OPINION

Page 594

PAEZ, Circuit Judge:

The grizzly bear is one of this country's most majestic creatures. Originally numerous throughout the American west, including California and Texas, grizzly bear populations were decimated in the nineteenth and twentieth centuries through a combination of commercial trapping, unregulated hunting and rapid habitat deterioration. Between 1800 and 1975, grizzly bear populations fell from estimates of over 50,000 to less than 1,000.[1] Today, they are present

Page 595

only in Washington, Idaho, Montana and Wyoming.

One sub-population of grizzly bear, central to the present case, is the Yellowstone grizzly bear, which is protected under the Endangered Species Act and monitored as part of the Yellowstone Grizzly Bear Recovery Zone. The Yellowstone grizzly bear shares its habitat with a variety of other species, including the Yellowstone bison, which migrates seasonally inside and outside of Yellowstone National Park. Because the Yellowstone bison carries brucellosis, a disease deadly to cattle, their migration patterns are controlled through carefully selected " 'hazing, or herding," methods. Although these hazing methods effectively limit encounters between Yellowstone bison and cattle, environmental groups have become increasingly concerned about the possibility for detrimental consequences to the precarious maintenance of the Yellowstone grizzly bear population. It is these concerns that are at issue in this case.

Alliance for the Wild Rockies (" Alliance" ) challenges the decision of the United States Forest Service (" Forest Service" ), United States National Park Service (" Park Service" ), United States Department of Agriculture (" USDA" ), United States Animal and Plant Health Inspection Service (" Inspection Service" ), United States Department of the Interior (" Interior" ), and United States Fish and Wildlife Service (" FWS" ) (collectively, " federal defendants" ), as well as the Montana Department of Livestock (" MDOL" ), to permit recurring, low-altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone. Alliance alleges that these helicopter flights may harass Yellowstone grizzly bears and constitute an unpermitted " 'take,' as defined by statute." Alliance alleges that the federal defendants and MDOL have violated the Endangered Species Act of 1973 (" ESA" ), 16 U.S.C. § § 1531 et seq., the National Environmental Policy Act of 1969 (" NEPA" ), 42 U.S.C. § § 4321 et seq., and the National Forest Management Act of 1976 (" NFMA" ), 16 U.S.C. § § 1600 et seq., because they have failed to undertake the proper procedures for reevaluating the effect of helicopter hazing on Yellowstone grizzly bears and have not issued an incidental take permit for the alleged harassment of Yellowstone grizzly bears.

Before turning to the merits of Alliance's claims, we must first address the district court's ruling that Alliance lacked Article III standing to pursue its claims and that Alliance failed to properly give notice of its ESA claims as required by 16 U.S.C. § 1540(g)(2)(A)(i). We also address whether Alliance's Section 7 claim under the ESA is moot.

We affirm in part and reverse in part.

I. Background

The Greater Yellowstone Area spans twenty million acres of land across parts of Idaho, Montana and Wyoming, including Yellowstone National Park. It is inhabited by wild bison and Yellowstone grizzly bears, both of which freely migrate in and out of Yellowstone National Park. Some wild bison in the Greater Yellowstone Area have a contagious bacterial disease called brucellosis that can be transmitted to cattle that graze in the region. To minimize disease transfer between bison and cattle, the bison are managed, in part, according to a 2000 interagency document entitled the Interagency Bison Management Plan (" Management Plan" ). The Management Plan aims to " maintain a wild, free ranging population of bison and address the risk of

Page 596

brucellosis transmission to protect the economic interest and viability of the livestock industry in the state of Montana." The Management Plan allows bison to leave Yellowstone National Park each winter to forage in lower elevations in Montana's Gallatin National Forest. In the middle of May of each year, MDOL encourages the bison to return to Yellowstone National Park via " hazing" operations. Approved hazing methods include using riders on horseback, off-highway vehicles and helicopters to move the bison out of Montana.

The Park Service, Forest Service, Inspection Service, Interior and USDA all signed and authorized the Record of Decision implementing the Management Plan. The State of Montana also signed a separate Record of Decision committing to implementation of the Management Plan.

A. Yellowstone Grizzly Bears

The Yellowstone grizzly bear is a sub-population of grizzly bear, which is listed as a threatened species under the ESA. 50 C.F.R. § 17.11 (2014). Consistent with their obligations under NEPA, the Park Service, Forest Service and Inspection Service completed a final environmental impact statement (" final EIS" ) prior to the approval of the Management Plan. The final EIS analyzed the potential effects of the Management Plan, including possible hazing operations, on Yellowstone grizzly bears in the spring, when they emerge from their dens to feed. It concluded that the impacts of bison hazing on Yellowstone grizzly bears " would be short term and negligible" because, " [a]lthough there is the possibility of overlap in the fall and spring when the bears are not in dens, during the majority of bison management activities, bears would be in their dens." The final EIS noted that hazing operations would cease if there was evidence of grizzly bear activity in the hazing area.

In compliance with Section 7 of the ESA, 16 U.S.C. § 1536(a)(2), the Park Service also prepared a Biological Evaluation for the Management Plan, which was approved by the FWS in 2000. The FWS concurred in the Park Service's finding that the Management Plan was " not likely to adversely affect" Yellowstone grizzly bears, but opined that reinitiation of consultation might be required if new information became available suggesting possible effects on the threatened grizzly bear population. The central basis for the Biological Evaluation's finding was that hazing activities would primarily occur while grizzly bears are hibernating. The Biological Evaluation further noted that " [i]f grizzly bears are active in the area, operations at the capture facilities may have to cease."

Following the Management Plan's approval in 2000, helicopter hazing under the plan was gradually extended beyond the original target of a mid-May completion date. In 2010, hazing operations were documented through the end of July, and in 2011, they continued through June. Additionally, both the Forest Service and independent observers reported the presence of Yellowstone grizzly bears prior to and during hazing operations. In 2012, the Park Service acknowledged these changes and announced that:

Since the [FWS] issued its letter of concurrence in 2000, additional information regarding bison and grizzly bears has become available. Through adaptive management adjustments to the Interagency Bison Management Plan, the hazing of bison now occurs more often from December through June than in the past. The hazing of bison during spring and early summer may affect threatened grizzly bears in a manner or to an extent not considered in the 2000 Biological Assessment.

Page 597

Shortly thereafter, while this case was pending in the district court, the Park Service reinitiated consultation based on new concerns regarding the impact of cutthroat trout reductions on grizzly bears and the cumulative effects of the extended helicopter hazing operations. The 2012 Biological Evaluation ultimately concluded " that bison hazing activities do not cause injury, decrease productivity, or significantly interfere with ...


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