Ninth Circuit Rejects ESA and NEPA Challenges to Yellowstone Bison Management Plan

December 11th, 2014

By: Thomas Law Group



In Alliance for the Wild Rockies v. U.S. Department of Agriculture, 2014 U.S. App. LEXIS 21949, the Ninth Circuit Court of Appeals affirmed in part and reversed in part an environmental advocacy groups’ challenge to a management plan for bison herds in Yellowstone National Park. While the court reversed several procedural determinations of the trial court, the court upheld summary judgment on the Environmental Species Act (ESA) and National Environmental Protection Act (NEPA) claims and held the respondent federal agencies adequately analyzed the impacts of the Interagency Bison Management Plan on Yellowstone grizzly bears.

To minimize the risk of disease transfer between Yellowstone bison and cattle, various federal agencies developed a bison management plan that allowed the Montana Department of Livestock to use low-altitude helicopter flights each year to herd bison from grazing areas in low elevations back into Yellowstone. When the original plan was approved in 2000, the federal agencies completed an environmental impact statement (EIS) that concluded the impact of the management plan on Yellowstone grizzly bears would be insignificant. The federal agencies also completed a biological evaluation in accordance with Section 7 of the ESA that reached the same conclusion.

In 2012, the National Park Service recognized the helicopter flights were overlapping more than anticipated with the reemergence of Yellowstone grizzlies following their winter hibernation. A second biological evaluation was conducted, which also determined that any impact on Yellowstone grizzlies was insignificant.

The court first reversed the district and held that petitioner had standing to challenge the management plan under the ESA and NEPA. The court rejected the trial court’s reasoning that petitioner had no standing because the federal agencies did not have the authority to unilaterally stop the low-elevation helicopter flights. Instead, the remedy sought by petitioner under the ESA was a biological opinion and incidental take statement for the Yellowstone grizzlies. Under NEPA, petitioner sought a supplemental EIS. Because both of these remedies are within the authority of the federal agencies, the court held petitioner had standing.

Petitioner brought two challenges under the ESA—first that Section 7(a)(2) of the ESA required an updated biological opinion and second, that a take permit was required for the Yellowstone grizzly under Section 9. The court affirmed the trial court’s decision that the Section 7(a)(2) claim was moot because during the course of the litigation the National Park Service completed a biological opinion.

With respect to the Section 9 claim, the court first reversed the trial court’s decision that the claim was barred because the complaint was filed less than 60 days after petitioner gave the federal agencies notice of the lawsuit. Although Section 11(g)(1)(A) prohibits plaintiffs from filing an ESA claim less than 60 days after notifying the defendant, in the instant case, petitioner filed its initial complaint without the ESA claims and only added them after the 60 days was over. The court held the plain language of the statute did not prohibit filing a complaint and amending it to include ESA claims after the 60-day notification period.

Getting to the substance of the ESA and NEPA claims, the court upheld summary judgment on the section 9 claim and found the record lacked evidence to show the helicopter flights would result in a “take” of grizzly bears. Similarly, NEPA did not require the federal agencies to complete a supplemental EIS because the original EIS already analyzed the possibility of increased encounters between the helicopters and Yellowstone grizzlies.

KEY POINT

The court emphasized the redressability requirement for standing does not require a court to determine whether the plaintiff will actually achieve the relief it desires. It is sufficient that the relief “could protect their concrete interests.” Here, even if an incidental take statement or biological opinion would result in greater protection of the Yellowstone grizzlies, petitioner had a right to adjudicate the claim.