Alliance for the Wild Rockies v. U.S. Dep't of Agric., CV 11–76–M–CCL.

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Writing for the Court: CHARLES C. LOVELL
• Citation: 938 F.Supp.2d 1034
• Parties: ALLIANCE FOR the WILD ROCKIES, Plaintiff, 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, and Christian Mackay, in his official capacity as Executive Director of the State of Montana Department of Livestock, Defendants, and Bill Myers, individually, Intervenor.
• Docket Number: No. CV 11–76–M–CCL.,CV 11–76–M–CCL.
• Decision Date: 15 May 2013

938 F.Supp.2d 1034

ALLIANCE FOR the WILD ROCKIES, Plaintiff,
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, and Christian Mackay, in his official capacity as Executive Director of the State of Montana Department of Livestock, Defendants,
and
Bill Myers, individually, Intervenor.

No. CV 11–76–M–CCL.

United States District Court,
D. Montana,
Missoula Division.

March 26, 2013.
Order Denying Injunction Pending Appeal May 15, 2013.

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Rebecca Kay Smith, Public Interest Defense Center, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Alison D. Garner, Andrea E. Gelatt, U.S. Department of Justice, Washington, DC, Coby Howell, Office of the U.S. Attorney, Portland, OR, Mark Steger Smith, Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, for Defendants.

John E. Bloomquist, Rachel Ann Kinkie, Doney Crowley Bloomquist Payne Uda, Helena, MT, for Intervenor.

OPINION & ORDER
CHARLES C. LOVELL, Senior District Judge.

Now before the Court are cross-motions for summary judgment filed by the Plaintiff Alliance for the Wild Rockies (“AWR”) and the Federal Defendants. For the reasons set forth below, Plaintiff's motion is denied and Defendants' motion is granted in its entirety.¹

AWR's motion for summary judgment asserts that the Federal Defendants' failure to address the environment impacts on the threatened Yellowstone grizzly bear resulting from low-altitude helicopter bison hazing operations during spring and summer months is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law. AWR specifically asserts that these activities violate the Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq., National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331, et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600, et seq., and the Administrative Procedures Act (“APA”), 5 U.S.C. § 701, et seq.

I. Background A. Procedural Background.

Plaintiff Alliance for the Wild Rockies filed a Complaint against the Regional Forester, Leslie Weldon, of the U.S. Forest Service, and the United States Forest Service on May 18, 2011, “challeng[ing] the U.S. Forest Service's 2008 management plan and 2011 annual decision to permit recurring, low-altitude helicopter flights that harass Yellowstone grizzly bears, during spring and summer bear season, over National Forest lands in the Yellowstone Grizzly Bear Recovery Zone.” The Complaint focused on helicopter hazing occurring above the Gallatin National Forest,

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particularly in the Hebgen Basin area. In a matter pertinent to a forthcoming Amended Complaint, AWR noted in the original Complaint that seven days previous to filing it had provided the ESA requisite 60–day notice letter to the Secretaries of the U.S. Department of Agriculture and the U.S. Department of Interior, and also to Christian Mackay, Executive Officer of the Montana Department of Livestock (“MDOL”) as to AWR's ESA claims. AWR also noted that an Amended Complaint adding AWR's ESA claims would be filed after the 60–day period elapsed. (Complaint, ECF No. 1, ¶ 4.) However, AWR also sent an amended 60–day notice of intent letter (adding two new defendants and new allegations) just six days before filing the Amended Complaint.

The First Claim for Relief of the Amended Complaint asserts that the helicopter hazing in May through July violates ESA Section 7, and required reinitiation of consultation on the 2000 IBMP,² the 2008 Adaptive Management Plan, and the Gallatin Forest Plan because “new impacts to grizzly bears ... were not considered in the initial Biological Opinion and Incidental Take Statement.” (ECF No. 19, Amended Compl. at 33.) The Second Claim for Relief asserts that the helicopter hazing in May through July violates ESA Section 9, by “allowing and causing past and ongoing unpermitted take of threatened Yellowstone grizzly bears from harassment and harm related to helicopter hazing operations that cause grizzly bears to flee from normal biological activities.” (ECF No. 19, Amended Compl. ¶ 112.)

A motion for temporary restraining order was granted by this Court on May 14, 2012, because—during the midst of this case, the principal question of which pending before the court is whether helicopter hazing is an appropriate means of moving the bison back into the Park—the MDOL began helicopter hazing. Because the case was not yet ready for decision, the Court entered the temporary restraining order and then allowed it to expire after the seasonal need for hazing ceased. (ECF No. 59.) The entry of the prior temporary restraining order should not be viewed as offering a gauge of the strength or weakness of the position of party to the case.

B. Factual Background.

Yellowstone National Park (“the Park”) lies within the Yellowstone Grizzly Bear Recovery Area. Yellowstone bison migrate out of the Park each winter searching for lower ground with better forage opportunities. Wandering Yellowstone bison thus annually enter the private and public lands bordering the Park, including the Gallatin National Forest. Unfortunately, the Yellowstone bison herd is infected with brucellosis, which is a disease harmful to humans and cattle. In order to maintain a wild and free-ranging bison population while yet avoiding the spread of the brucellosis disease to cattle grazing outside the Park, both the National Park Service and also the State of Montana have attempted to control annual winter bison migrations. The State of Montana has attempted to control bison migrations from Yellowstone National Park using various methods, including lethal removal of bison as they exit the Park and shipment of seropositive bison to slaughter. Prior to 2000, the State of Montana's prevailing bison management method was to “capture

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and slaughter ... all bison crossing the north end and most bison crossing the west boundary of the park.” (NPS AR 6 at 365.) ³ Since 2000, the State of Montana has at times utilized various hazing techniques, including helicopter hazing, to encourage bison to return to the Park following winter migration. Neither the NPS nor the USFS issues any permit for the MDOL to conduct helicopter hazing activities.

II. Standard of Review A. Summary Judgment Standard.

A claim challenging agency action is addressed appropriately by summary judgment. See e.g. Native Ecosystems Council v. Tidwell, 599 F.3d 926, 938 (9th Cir.2010). Summary judgment may be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

The moving party bears the initial responsibility of presenting the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The initial burden on plaintiff to inform the court varies “depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial.” Cecala v. Newman, 532 F.Supp.2d 1118, 1132–33 (D.Ariz.2007). If the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting affirmative evidence as to the essential elements of its case such that no reasonable jury could find for the non-moving party. See Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. If the movant meets its initial responsibility, the burden shifts to the non-movant to show a genuine issue as to a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In deciding a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. Rule 56(c), Fed.R.Civ.P. Evidence supplied by the opposing party is to be believed and all reasonable inferences drawn therefrom in favor of the opposing party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. However, in the context of cross-motions for summary judgment, each motion is to be treated independently on its own merits, and denial of one motion does not require the granting of another. See Regents University of Cal. v. Micro Therapeutics, Inc., 507 F.Supp.2d 1074 (N.D.Cal.2007).

B. APA Review Standard.

Through the Administrative Procedures Act, Congress has granted a limited waiver of sovereign immunity. Gallo Cattle Co. v. U.S. Dep't of Agric., 159 F.3d 1194, 1198 (9th Cir.1998). A reviewing court may set aside final agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a high threshold, and the APA “does not allow the court to overturn an agency decision because it disagrees with the decision....” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010) (per

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curiam). The scope of the review is limited to the administrative record. 5 U.S.C. § 706.

III. Discussion A. Statute of Limitations.

The Record of Decision for the 2000 Final Environmental Impact Statement and Bison Management Plan for the State of Montana and Yellowstone National Park (NPS AR 9) was issued on December 20, 2000. The six-year statute of limitations on the 2000 Joint Management Plan and the 2000 FEIS (NPS AR 9) has now long...