Friday, November 21, 2014

Ninth Circuit Upholds Yellowstone Bison Hazing Program

On November 20, the Ninth Circuit (Schroeder, Paez, Berzon) issued a decision in Alliance for the Wild Rockies v. Department of Agriculture.  Montana authorities, under a federally approved program, use low altitude helicopter flights, riders on horseback, and off-highway vehicles in the Greater Yellowstone Area to haze bison, directing the bison into Yellowstone National Park and away from cattle to which the bison could spread the disease brucellosis.  The area in which the bison hazing occurs is habitat for the endangered Yellowstone grizzly bear.  Alliance for the Wild Rockies sued the federal agencies that approved the bison hazing, alleging that the helicopter flights harass grizzlies in the area in violation of the Endangered Species Act (ESA), NEPA, and the National Forest Management Act (NEPA).  On appeal from a district court judgment in favor of the defendants, the Ninth Circuit held (a) that the Alliance had Article III standing to pursue its claims against the federal defendants, because the federal defendants approved the bison hazing program even though a state agency operates it; (b) that the Alliance’s claim under Section 7 of the Endangered Species Act was moot because the defendants already had completed a new biological evaluation consultation; (c) that the Alliance complied with the Endangered Species Act’s sixty-day notice requirement for citizen suits by sending a notice of intent to sue, then filing a complaint alleging non-ESA claims, and then amending its complaint to add ESA claims after the sixty-day window had expired; (d) that the Alliance’s claims against the Animal and Plant Health Inspection Service and Fish and Wildlife Service failed because those claims were not part of the Alliance’s sixty-day notice; (e) that the Alliance’s claim under Section 9 of the ESA failed because the Alliance failed to present evidence that bison hazing would cause a “take” of a Yellowstone grizzly bear; and (f) that the Alliance’s claims under NEPA and NFMA failed because it failed to show changes in the bison hazing program that would require a supplemental environmental impact statement. 

Most of these conclusions are case-specific and closely tied to the record in this case.  The question of whether a plaintiff can bring suit alleging non-ESA claims before the sixty-day window has expired, and then amend its complaint to add ESA claims upon expiration of the sixty-day period, is a purely legal issue that will establish precedent for at least the Ninth Circuit.  The court distinguished cases such as Proie v. National Marine Fisheries Service, No. C11-5955BHS, 2012 WL 1536756 (W.D. Wash. May 1, 2012), in which the plaintiff’s initial complaint alleged APA claims based on ESA violations.  Here, by contrast, the Alliance’s initial complaint raised NEPA and NFMA claims independent of the ESA.

—Todd Aagaard

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