Home » Case Summaries » 2015 » Alliance for the Wild Rockies v. U.S. Dep’t of Agriculture, 772 F.3d 592 (2014)

 
 

Alliance for the Wild Rockies v. U.S. Dep’t of Agriculture, 772 F.3d 592 (2014)

 

Alliance for the Wild Rockies (Alliance), an environmental organization, brought this action, concerning the hazing or herding of bison in Yellowstone National Park, against the United States Department of Agriculture, other federal agencies, and the Montana Department of Livestock (collectively, Defendants).[1]Alliance alleged that the Defendants: 1) failed to issue a Biological Opinion (BiOp) in violation of the Endangered Species Act of 1973 (ESA);[2] 2) failed to prevent the “take” of an endangered species in violation of the ESA; 3) failed to issue a supplemental environmental impact statement (EIS) in violation of the National Environmental Policy Act of 1969 (NEPA);[3] and 4) did not act in conformity with the Gallatin National Forest Plan in violation of the National Forest Management Act of 1976 (NFMA).[4] The United States District Court for the District of Montana held that Alliance lacked standing to sue under NEPA and the ESA and granted summary judgment in favor of Defendants on all claims. On appeal, the Ninth Circuit reversed the district court’s decision as to standing, but otherwise affirmed the district court, again granting summary judgment for Defendants.

The Yellowstone region provides habitat for Yellowstone bison. Because these bison carry brucellosis, a disease that is deadly to cattle, Defendants issued an Interagency Bison Management Plan in 2000 to address the issue of brucellosis transmission. The Management Plan authorized the Montana Department of Livestock to use hazing or herding by riders on horseback, vehicles, or helicopters to encourage bison migration. However, because Yellowstone’s grizzly bear population (Ursus arctos horribili) is protected under the ESA,[5] the Management Plan also indicated that if there was any indication of grizzly presence, the hazing should stop.

Initially, the Management Plan predicted that the hazing would primarily take place in the fall and spring, when the grizzlies would be in dens. As required by section 7 of the ESA,[6] Defendants prepared a BiOp for the planned action and determined that the Management Plan was not likely to affect the Yellowstone grizzlies. However, after 2000, the hazing began to extend into the summer months, when the grizzlies were active. On May 11, 2011, Alliance sent defendants a notice of intent to sue under the ESA. On May 18, 2011, Alliance filed a complaint against Defendants under the Administrative Procedure Act, alleging that the helicopter harassment of the grizzlies violated NEPA and NFMA. Alliance amended the complaint on July 14, 2011, after the 60-day ESA notice period had concluded, in order to add the ESA claims. Subsequently, Defendants issued a new BiOp in 2012, again concluding that the hazing activities would not adversely affect the Yellowstone grizzly bears.

The district court granted summary judgment for Defendants, holding that 1) Alliance lacked standing to pursue its claims; 2) Alliance failed to meet the 60-day notice requirement for its ESA claims; 3) the ESA section 7 claim was moot; 4) the ESA section 9 claim lacked merit; 5) there was no violation of NEPA; and 6) there was no violation of NFMA. Alliance appealed to the Ninth Circuit. On appeal, the Ninth Circuit conducted a de novo review of the standing, mootness, and summary judgment issues.

As a threshold matter, the Ninth Circuit determined that Alliance did have standing to bring its ESA and NEPA claims against Defendants, reversing the holding of the district court. Article III standing requires that a plaintiff show 1) an injury in fact; 2) a causal connection between the injury and the conduct; and 3) a likelihood that the injury will be redressed by a favorable decision.[7] Here, Defendants did not question Alliance’s claims of injury in fact. Rather, the federal agencies argued that they did not have control over the hazing operation, and could not redress the harm at issue. However, the Ninth Circuit determined that the injury at issue was a procedural injury, and therefore the alleged injuries could be redressed by compliance with the procedural requirements of the ESA and NEPA.

The Ninth Circuit also reversed the district court’s holding as to the sixty day notice requirement. Before bringing a citizen suit under the ESA, plaintiffs must alert the agencies in question of the alleged violation at least sixty days before filing suit.[8] Defendants argued that Alliance failed to give sufficient notice because it filed NEPA and NFMA claims before the 60-day period had run. However, based on a plain text reading of the statute, the Ninth Circuit determined that the fact that Alliance gave notice sixty days before filing the ESA claims was sufficient to meet the requirement because the notice provision did not explicitly prohibit filing other claims during the notice period.

The Ninth Circuit affirmed the District Court’s holding as to the remaining issues. The court held that Alliance’s ESA section 7 claim that Defendants had failed to issue a revised BiOp was mooted when Defendants issued a revised BiOp in 2012. The Ninth Circuit also rejected Alliance’s ESA section 9 claim. Section 9 of the ESA prohibits the “taking” of endangered species.[9] Among other things, to “take” is defined as “to harass.”[10] Alliance alleged that the helicopters harassed the grizzlies by displacing the bears from feeding activities and disrupting their behavioral patterns. Because Alliance did not submit specific evidence of the helicopters affecting the bears or even of the helicopters continuing operations when there were signs of grizzly presence, the Ninth Circuit concluded that there was no evidence of a “taking” of the Yellowstone grizzly bears.

The Ninth Circuit also held in favor of Defendants on the NEPA claim. Under NEPA, federal agencies must complete an EIS if they take an action “significantly affecting the quality of the human environment.”[11] If, after the initial EIS, “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” then the agency must draft a supplemental EIS.[12] Alliance alleged that Defendants had violated NEPA by failing to develop a supplemental EIS when the timing of the hazing changed because the additional hazing during the grizzly’s active season constituted new circumstances or information. However, the Ninth Circuit held that Defendants had addressed the possibility of such additional contact in the initial EIS and were not required to issue a supplement.

Finally, the Ninth Circuit affirmed the grant of summary judgment for Defendants as to the NFMA claim without discussion. Ultimately, the Ninth Circuit reversed the district court’s standing determinations and, reaching the merits, granted summary judgment to Defendants on all claims.

 

Footnotes    (↵ returns to text)

  1. Defendant-appellees also include United States Animal and Plant Health Inspection Service, United States Forest Service, Leslie Weldon in her official capacity as Regional Forester of Region One of the U.S. Forest Service, United States Department of the Interior, United States Fish and Wildlife Service, and United States National Park Service. Rancher Bill Myers also intervened in the action as a defendant-appellee.
  2. 16 U.S.C. §§ 1531–1544 (2012).
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  5. 50 C.F.R. § 17.11 (2013).
  6. 16 U.S.C. § 1536 (2012).
  7. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
  8. 16 U.S.C. § 1540(g)(2)(A) (2012).
  9. Id. § 1538(a)(1)(B).
  10. Id. § 1532(19).
  11. National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2012).
  12. 40 C.F.R. § 1502.9(c)(1)(ii) (2011).
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