Fund for Animals, Inc. v. Lujan

• Decision Date: 29 April 1992
• Docket Number: No. 91-35283,91-35283
• Citation: 962 F.2d 1391
• Parties: 22 Envtl. L. Rep. 21,194 The FUND FOR ANIMALS, INC., Plaintiff-Appellant, v. Manuel LUJAN, Jr., in his official capacity as Secretary of the United States Department of the Interior; Clayton Yeutter, Secretary of Agriculture; K.L. Cool, in his official capacity as Director of the State of Montana Department of Fish, Wildlife and Parks; Les Graham, in his official capacity as Director of the State of Montana Department of Livestock and the State of Montana, by and through Marc Racicot, Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1391

962 F.2d 1391

22 Envtl. L. Rep. 21,194

The FUND FOR ANIMALS, INC., Plaintiff-Appellant, v. Manuel LUJAN, Jr., in his official capacity as Secretary of

the United States Department of the Interior; Clayton

Yeutter, Secretary of Agriculture; K.L. Cool, in his

official capacity as Director of the State of Montana

Department of Fish, Wildlife and Parks; Les Graham, in his

official capacity as Director of the State of Montana

Department of Livestock and the State of Montana, by and

through Marc Racicot, Attorney General, Defendants-Appellees.

No. 91-35283.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 4, 1992.

Decided April 29, 1992.

W. Craig James, Skinner, Fawcett & Mauk, Boise, Idaho, for plaintiff-appellant.

Andrew C. Mergen, Appellate Section, Environment & Natural Resources Div., Dept. of Justice, Washington, D.C., Robert J. Brooks, Asst. U.S. Atty., Butte, Mont., for U.S. defendants-appellees.

Norman C. Peterson, Agency Legal Services Bureau, Montana Dept. of Justice, Helena, Mont., for State defendants-appellees.

R.J. "Jim" Sewell, Jr., Helena, Montana, for amici curiae, Montana Stock Growers Assoc.

Appeal from the United States District Court for the District of Montana (Missoula).

Before: WRIGHT, and ALARCON, Circuit Judges, FONG, District Judge. ^*

ALARCON, Circuit Judge:

The Fund for Animals, Inc. (the Fund) appeals from the denial of preliminary injunctive relief against the Secretary of the Interior and the Secretary of Agriculture (Federal defendants), and the director of Montana's Department of Fish, Wildlife, and Parks (MDFWP), the director of Montana's Department of Livestock, and "the State of Montana, by and through Marc Racicot, Attorney General" (State defendants). The Fund claims that the defendants violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) and the Montana Environmental Policy Act, Mont.Code Ann. § 75-1-101 et seq., (MEPA) by failing to prepare an environmental impact statement before adopting a plan to kill bison that leave Yellowstone National Park (Yellowstone).

The Fund asserts that the district court abused its discretion in denying a preliminary injunction. We affirm because the Eleventh Amendment bars the Fund's action against the State defendants for violations of MEPA. We also determine that the federal involvement in the bison management plan is insufficient to enjoin the State defendants for a NEPA violation. We further conclude that the district court did not abuse its discretion in ruling that the Fund did not carry its burden of demonstrating a likelihood of success on the merits and a possibility of irreparable injury, or the existence of serious questions on the merits and a balance of hardships tipping in its favor.

Pertinent Facts

In January 1991, there were between 2,500 and 3,000 bison in Yellowstone.

                Three herds of bison live and graze in separate parts of Yellowstone.   The Fund is primarily concerned about the treatment of the northern herd.   There were between 600 and 800 bison in the northern herd in October 1990.   The bison in the northern herd migrate out of Yellowstone each winter onto public land owned by the United States Forest Service and private land in the State of Montana.   Private hunters and agents of the State of Montana have killed bison after they have crossed Yellowstone's boundaries for many years
                

In October 1990, the National Park Service (NPS) solicited comment on an environmental assessment (EA) that described ways Montana and the federal government could manage the migrating bison until an Environmental Impact Statement (EIS) was prepared. The EIS would consider a long-term, more permanent planning effort. After receiving public comment on the alternative proposals described in the EA, the NPS published a finding of no significant impact (FONSI) on December 3, 1990.

The proposal adopted by the FONSI contemplated that the MDFWP and the NPS would work together in managing the migration of bison from Yellowstone. Under the plan, bison cows and bulls leaving Yellowstone would be killed by private hunters or state wardens. Bison calves would be captured, neutered and sold at public auctions. The 1990 bison management plan provides for the preservation of a core population of 200 bison in the northern herd. Once this number is reached, the plan requires that precautions be taken to protect the remaining bison from being killed or sold off. These precautions include hazing, harassment, slower harvest rates, selective removals of bison closest to domestic cattle, and the selection of special management zones where bison would be tolerated.

On December 5, 1990, the Fund filed a complaint alleging that the defendants had violated NEPA by failing to prepare an EIS to evaluate the 1990 bison management plan. On January 7, 1991, the Fund amended its complaint to include a claim that the State defendants' failure to prepare an EIS violated MEPA. The district court conducted a two day evidentiary hearing that commenced on January 10, 1991. The parties presented evidence concerning the effect of the management plan on the northern herd and the danger of the transmission of brucellosis to Montana cattle by the migrating bison.

In its January 15, 1991 order denying a preliminary injunction, the district court concluded that the doctrine of res judicata and collateral estoppel barred the Fund's claims against the Federal defendants. It held that collateral estoppel and the Eleventh Amendment barred the Fund's claims against the State defendants. Alternatively, the district court held that the Fund had not raised serious questions regarding the merits of its claim or demonstrated that the balance of hardships favored the issuance of a preliminary injunction. On January 25, 1991, the district court filed a supplemental memorandum to explain its ruling more fully.

DISCUSSION

I. Standing.

The Federal defendants contend that the Fund does not have standing to maintain this appeal because it failed to show that its members suffered an injury as a result of the killing of the bison that leave Yellowstone. The Fund asserts that it has standing to contest the 1990 bison management plan because of the diminished opportunity for its members to view bison in Yellowstone. In addition, the Fund asserts that the emotional distress suffered by its members after viewing the shooting of bison established its standing. We review de novo whether an appellant has standing. Northern Plains Resource Council v. Lujan, 874 F.2d 661, 668 (9th Cir.1989).

To establish standing, an appellant must demonstrate a personal injury that is fairly traceable to the appellee's conduct. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Alaska Fish & Wildlife Fed'n and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 937 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988). An organization may bring an action on behalf of its members if (1) the individual members would otherwise have standing to sue in their own right; (2) the interests being protected are relevant to the organization's purpose; and (3) the individual members are not required to participate in the lawsuit. Id. at 937-938 (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)). The Federal defendants argue that the Fund has not met the first prong of the test on this appeal.

The record shows that its individual members have standing to enjoin the appellees from adopting the 1990 bison management plan. At the evidentiary hearing, Wayne Pacelle, the National Director of the Fund for Animals, testified that Fund members had fewer opportunities to view wild bison in Yellowstone as a result of the defendants' actions. ¹

Harm to a plaintiff's "aesthetic and environmental well-being" has long been recognized as a cognizable injury. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). For example, in Alaska Fish, 829 F.2d at 937, the Alaska Fish and Wildlife Conservation Fund contended that its members had suffered an injury because the defendants allowed Alaskan Natives to hunt certain species of migratory birds. Id. at 937. We agreed, noting that the decrease in the number of migratory birds injured "those who wish to hunt, photograph, observe, or carry out scientific studies on the migratory birds." Id. We concluded that the Alaska Fish and Wildlife Conservation Fund had standing to challenge the actions of the director of the United States Fish and Wildlife Service and the Commissioner of the Alaska Department of Fish and Game on behalf of its members. Id. at 938. Likewise, in our case, the diminished opportunity of the Fund's members to view the northern bison herd in Yellowstone establishes standing to challenge the 1990 bison management plan.

The record also demonstrates that the Fund's members had standing to sue because of the psychological injury they suffered from viewing the killing of the bison in Montana. Mr. Pacelle testified that several Fund members had been emotionally harmed when they saw bison "who were just standing outside the boundary of the park shot and crumbled [sic] to their feet." We have pointed out that "the NEPA zone of interests does not create a cause of action in persons claiming a psychological impact from a particular action, unless, perhaps, the psychological injury arises 'out of the direct sensory impact of a change in the [plaintiff's] physical environment.' " Animal Lovers Volunteer Ass'n, Inc. (ALVA) v. Weinberger, 765 F.2d 937, 938 (9th Cir.1985) (quoting Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779, 103 S.Ct. 1556, 1564, 75 L.Ed.2d 534 (1983) (Brennan, J., concurring)).

In Humane Soc'y of the United States v. Hodel, 840 F.2d 45 (D.C.Cir.1988), the court concluded that the Humane Society had standing to protest...