Western Watersheds Project v. Salazar

• Decision Date: 14 February 2011
• Docket Number: No. CV 09–159–M–CCL.,CV 09–159–M–CCL.
• Citation: 766 F.Supp.2d 1095
• Parties: WESTERN WATERSHEDS PROJECT, Buffalo Field Campaign, Tatanka Oyate, Gallatin Wildlife Association, Native Ecosystems Council, Yellowstone Buffalo Foundation, Meghan Gill, Charles Irestone, and Daniel Brister, Plaintiffs,v.Ken SALAZAR, Secretary of the Interior; Susanne Lewis, Park Superintendent, Yellowstone National Park; National Park Service, an agency of the U.S. Department of Interior; Leslie Weldon, Regional Forester, U.S. Forest Service Northern Region; United States Forest Service, an agency of the U.S. Department of Agriculture; Mary Erickson, Gallatin National Forest Supervisor, Defendants.
• Court: U.S. District Court — District of Montana

766 F.Supp.2d 1095

WESTERN WATERSHEDS PROJECT, Buffalo Field Campaign, Tatanka Oyate, Gallatin Wildlife Association, Native Ecosystems Council, Yellowstone Buffalo Foundation, Meghan Gill, Charles Irestone, and Daniel Brister, Plaintiffs,

v.Ken SALAZAR, Secretary of the Interior; Susanne Lewis, Park Superintendent, Yellowstone National Park; National Park Service, an agency of the U.S. Department of Interior; Leslie Weldon, Regional Forester, U.S. Forest Service Northern Region; United States Forest Service, an agency of the U.S. Department of Agriculture; Mary Erickson, Gallatin National Forest Supervisor, Defendants.

No. CV 09–159–M–CCL.

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

Feb. 14, 2011.

Summer Lisa Nelson, Western Watersheds Project, Rebecca Kay Smith, Missoula, MT, for Plaintiffs.Anna K. Stimmel, Paul David Barker, Jr., U.S. Department of Justice, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

OPINION & ORDER

CHARLES C. LOVELL, Senior District Judge.

Before the Court are the parties' cross-motions for summary judgment. The Court heard oral argument from the parties from Ms. Summer Nelson for the Plaintiffs and from Mr. Paul D. Barker, Jr., and Ms. Anna Stimmel, for the Defendants. The Court having read the papers, having reviewed the administrative record, and having heard and considered the arguments of the parties, is prepared to rule.

Prior Bison Litigation

Prior to oral argument, the Court, believing that certain issues raised here by Plaintiffs had already been before the undersigned and the Ninth Circuit Court of Appeals, addressed the following introductory comments to counsel and the parties to review the litigation history relating to Yellowstone bison:

THE COURT: We are ready, then, to proceed. What we will do today, I think some little preliminary introduction by the Court is warranted in view of the fact that we've had some considerable amount of litigation in the past relating to the bison, then we will proceed after my introductory remarks.

* * *

Now, it has been a few years since the Court has had a case involving the Yellowstone bison, but there have been a number of cases decided in the past involving the Yellowstone bison. In some respects, many of the issues here have been considered in the past, the Court has taken them into account and ruled on certain issues. I want to touch on some of those cases and to ask Counsel, in argument, to consider the applicability of some of those cases, let the Court know we are not plowing new ground here with respect to some of these issues, or are we? Are we going to sweep aside all the decisions that have been made since 1985 relating to this same topic? Let the Court know is there anything here relating to res adjudicata? Is there any stare decisis considerations here? The Court certainly should be permitted, in some respects, to take judicial notice of prior decided cases. Now, I want to just briefly review these cases.

We all know this proceeding is brought under the Administrative Procedures Act before the Court, it comes here by cross motions for summary judgment. The Administrative Act provisions, of course, are applicable. In looking back, by way of background, I think the evidence shows that around 1902 there were between 20 and 50 bison inside Yellowstone Park. Now, by the time of the first case that came before this Court in 1985, the bison had multiplied until their numbers inside the park were in the thousands.

The first case that was filed that year is commonly referred to here as Fund Case No. 1. That's not F–U–N, that's F–U–N–D. It was Fund for Animals against [Hodel]. In that case the plaintiffs sought a declaratory judgment and injunctive relief to stop the Park Service from allowing migrating bison to be killed. Bison were leaving the park because of the winter snows and a lack of adequate feed. They were starving. It also was caused, at least in part, by the cleaning of the roads of snow for snowmobile and snow coach use and, obviously, the bison would rather walk down a plowed trail than go through deep snow.

In any event, the court in that case did rule in favor of the defendants. The preferred alternative in the environmental assessment did not constitute arbitrary and capricious action, neither did it mandate an environment impact study. In other words, it wasn't Federal action that was majored [sic] in the Park's decision not to build a fence or not to feed the bison or to take other action, but in simply allowing them to migrate out of the park.

Now, incidentally, that case was not appealed. But sometime after that, I believe that in 1991, the Fund for Animals filed another case, and that is Fund Case No. 2. The defendants were Manuel Lujan, Secretary of the Interior, and others, but notably the State of Montana was joined in that action. An emergency injunction was requested by the proceeding, but this case sought to stop the State of Montana from shooting the—shooting bison outside the state boundaries. In other words, in the first case the remedy sought was for the Park Service to keep the bison in; this case dealt with not allowing the bison to be [shot] when they migrated into Montana.

The court considered a number of things in that case, among other things found that the caring [sic] capacity of the park was about 2,400 animals as of that time, that the numbers of the herd exceeded that amount substantially. Among other notable points, the court decided that this disease of brucellosis, which was carried by approximately half the bison herd at that time according to certain studies, actually was a very serious disease, that it had a substantial impact on the economy of Montana, and I think the numbers involved were that ranchers and others in the State of Montana had expended about $30 million to have the state declared brucellosis free. And I don't recall the exact amount, but it would have amounted to millions of dollars to—of expense to Montana ranchers, in selling their cattle, to have every cow sold tested in the event that that brucellosis free designation would be lost.

In any event, out of that case the court recognized that the State of Montana has the absolute right, under its police powers in protecting the health, safety and welfare of its inhabitants, to remove, by reasonable means, possibly infected trespassing Federal bison which migrate into Montana. The court examined the disease of brucellosis, found that, according to the expert testimony, the brucellosis parasite is a facultative intracellular parasite, which in English simply means that, number one, it is a parasite. As it invades any host, it invades the boundaries of the cell itself, therefore it's hard to reach by way of treatment. Brucellosis, when contacted by human beings, was referred to as undulant fever. Undulant fever at one time was a substantial health problem in this country, but it was largely eliminated by the pasteurization of raw milk. In any event, the disease here was thought to be substantial.

Now, that case was appealed, and it went to the Circuit Court, and the Circuit Court did affirm the District Court in that case. And I don't mean by that affirmance to suggest that everything the District Court said was endorsed by the Circuit Court, but, certainly, the result was—and there may be portions of that case where the evidence there and the findings by the Court are still of some use, or not. In argument you can help me by telling me what the circumstance is in your mind.

Now, the next case, Greater Yellowstone Coalition, American Buffalo Foundation, Gallatin Wildlife Association, there were a number of parties here, this case was in 1996. Here, the plaintiffs sought to enjoin an interim plan for management of bison. Now, that included the capture and removal of bison within the park. The parties here were striving to avoid the parties leaving—or the bison leaving the park, migrating into Montana, and the thrust of the plaintiffs' case was that the Park Service ought not be allowing capturing or killing of animals within the park.

The court here—the District Court here decided that it is permissible for park personnel to proceed to capture or kill wild game in the park, and that was, incidentally, despite the existing anti-poaching statutes, which the court held were intended to apply only to members of the public. The court made a number of findings in the case, some of which may still be pertinent. The court found that the bison which were being removed within the park at that time were not required for the future integrity of the herd now that they were threatening neighboring landowners. Now, there was a motion for stay of appeal in District Court, that was denied, but there is no evidence of an appeal ever having been taken from that case of which I'm aware.

The next case, then, came in 1998. This was the Intertribal Bison Cooperative case against Babbitt. In this case, the plaintiffs sought to enjoin the State and Federal Government agreement to manage the bison herd inside Yellowstone Park. The District Court found that the interim bison management plan was not contrary to statute, there was no significant impact, the FONSI here was not arbitrary, failure to prepare an environmental impact statement did not violate NEPA, and this ruling has—has been made with some regularity here by the District Court where it found that the modified interim plan was also lawful. The court stated that the National Park Service has authority to destroy park wildlife pursuant to properly prepared wildlife management plans. The court held that the operation of the capture facility before they exit the park, and shipment of the bison for slaughter, didn't violate the National Park Service Organic Act, and particularly here—and this is a thought that is repeated by the parties throughout these cases—the seronegative bison leaving the Yellowstone...