Case 1:19-cv-00128-SPW Document 4-1 Filed 10/23/19 Page 1 ...
Transcript of Case 1:19-cv-00128-SPW Document 4-1 Filed 10/23/19 Page 1 ...
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MATTHEW D. THURLOW, D.C. Bar No. 1008014 Baker & Hostetler LLP 1050 Connecticut Avenue, NW Washington, DC 20036 (202) 861-1681 [email protected] JARED S. PETTINATO, D.C. Bar No 496901 Jared Pettinato Law Offices 3416 13th St. NW, #1 Washington, DC 20010 (406) 314-3247 [email protected] Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NEIGHBORS AGAINST BISON SLAUGHTER, et al.,
Plaintiffs,
v.
The NATIONAL PARK SERVICE, et al.,
Defendants.
Case No.
Judge
PLAINTIFFS’ AND POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
Table of Acronyms and Abbreviations .......................................................................................... iii
Chronology .................................................................................................................................... iv
Introduction ..................................................................................................................................... 1
Legal Background ........................................................................................................................... 3
I. Yellowstone Enabling Act and Amendments ...................................................................... 3
II. Forest Service Management Statutes ................................................................................... 3
III. The National Environmental Policy Act .......................................................................... 4
Factual Background ........................................................................................................................ 5
I. Bison Form an Integral Part of the Greater Yellowstone Ecosystem. ................................. 5
II. Montana Views Brucellosis as a Threat to the Cattle Ranching Industry. .......................... 6
III. Montana Agreed to the Bison Management Plan the U.S. Agencies Proposed. .............. 8
IV. Hunting Has Continued Escalating Since the 2000 IBMP EIS. ..................................... 11
V. The Hunt Has Increased Dangers to Property Owners, Neighbors, and Visitors. ............. 13
Standards of Review ..................................................................................................................... 16
I. Administrative Procedure Act............................................................................................ 16
II. Preliminary Injunction and Temporary Restraining Order ................................................ 17
Argument ...................................................................................................................................... 17
I. Neighbors is Likely to Prevail on its Legal Claims. .......................................................... 17
A. The Forest Service Unreasonably Regulated the Land Congress Assigned it to Regulate. ................................................................................................................................ 18
B. The Park Service Can Control the Bison Hunting in Beattie Gulch. ............................. 21
C. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan as Connected Actions. ............................................................. 29
D. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan in a Supplemental, Federal Environmental Analysis. ............. 33
II. The Balance of the Equities Weighs Heavily in Favor of Stopping the Bison Hunt at Beattie Gulch Until the Parties Can Brief the Merits. ............................................................... 36
A. The Bison Hunt Will Cause Neighbors Irreparable Harm. ............................................ 36
B. The Federal Agencies Will Suffer No Irreparable Injury from Stopping the Hunt. ...... 43
C. The Public Interest Weighs in Favor of Stopping the Bison Hunt in Beattie Gulch...... 44
Conclusion .................................................................................................................................... 45
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TABLE OF ACRONYMS AND ABBREVIATIONS
2019 Winter Decision [2019] Operating Procedures for the IBMP (Dec. 31, 2018)
APA Administrative Procedure Act, 5 U.S.C. §§ 701-706
APHIS USDA Animal Plant Health Inspection Service
CEQ Council on Environmental Quality
Environmental Assessment EA
Environmental Impact Statement EIS
IBMP Interagency Bison Management Plan
Montana Livestock Montana Department of Livestock
Montana Wildlife Montana Department of Fish, Wildlife and Parks
MUSYA The Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531
Neighbors Neighbors Against Bison Slaughter
NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m-12
NFMA National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614
Park Service National Park Service
Record of Decision ROD
Yellowstone Management Act Amendments
Act of January 24, Pub. L. No. 67-395, 43 Stat. 1174, 1214 (codified at 16 U.S.C. § 36)
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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. iv
CHRONOLOGY
Date Event 1994 APHIS informed the Montana State Veterinarian it intended to revoke
Montana’s brucellosis class-free designation if Montana failed to stop bison leaving Yellowstone. Interagency Bison Mgmt. Plan Envtl. Impact Statement 39.
1995 Montana sued the United States to force it to keep Yellowstone bison within Yellowstone. Montana v. Babbitt, No. 95-6-H-CCL (D. Mont. 1995).
2000 Several federal agencies and Montana decided to implement an interagency bison management plan (IBMP) and formed the IBMP Committee.
2003 The 2003 Montana Legislature authorized Montana Wildlife to consult and to cooperate with Montana Livestock to issue rules for “fair chase hunting of wild buffalo or bison . . . .” S. Bill 395 § 1(d) (codified as amended at Mont. Code Ann. § 81-2-120 (2019)).
2004 Montana analyzed the environmental effects of allowing hunting in Beattie Gulch under the Montana Environmental Policy Act (MEPA), Mont. Code Ann. §§ 75-1-101 to 324. Mont. Final Bison Hunting EA 20 (Sept. 30, 2004).
2005 Montana reestablished bison hunting for the first time since 1991. Letter from Montana Fish, Wildlife and Parks (Montana Wildlife) to Interested Person (Sept. 2, 2018) (Mont. 2018 Letter).
2007 Montana Wildlife set the bison hunting season from November 15 to February 15. IBMP Operating Procedures 9 (Nov. 16, 2007).
2011 The Federal Agencies analyzed the possibility of allowing more tribal hunting in Beattie Gulch. Mem. To Files, IBMP Agencies, Adaptive Management Adjustments to [IBMP] and [NEPA/MEPA] Documentation 11 (Dec. 1, 2011).
2015 The Forest Service closed eighteen acres to hunting. Montana Wildlife, Hunting Season/Quota Change Supporting Info. 2 (Sept. 19, 2019).
January 2017
Montana concluded that “the safety issues continue to escalate [in Beattie Gulch] and the fear for injury or death to hunters is real.” Letter from Dave Loewen, Montana Wildlife Chief of Law Enforcement, et al. to Sam Sheppard, R3 Supervisor et al. (Jan. 27, 2017) (2017 Mont. Letter), Ex. V.
November 2017
Forest Service pushed hunting farther west of Old Yellowstone Trail, South, and deeper west into Beattie Gulch. See Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017).
2018 Montana again concluded that the “density of hunters has increased beyond what [Montana Wildlife] considers safe.” Mont. 2018 Letter. It proposed closing part of Beattie Gulch to Montana-licensed hunters. Id.
2019 The IBMP further expanded hunting at Beattie Gulch. 2019 Winter Decision 6.
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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. 1
INTRODUCTION
Sooner or later the chaotic, overcrowded, and unsafe bison hunting at Beattie Gulch will kill
or seriously injure someone. Beattie Gulch lies just north of Yellowstone National Park’s border
in Montana, on Custer Gallatin National Forest land. The bison hunt has escalated in recent years
as more Native American tribes and state-licensed hunters participate and more bison are taken.
Now, during the winter, the National Park Service lets bison leave Yellowstone, so hunters can
slaughter them by the hundreds on a tiny parcel of Forest Service land.
The Park Service aims to keep the Yellowstone wild plains bison1 population below 3,000
because, when higher population numbers make grass and other food harder to find in the winter,
and some bison head north out of Yellowstone in search of forage.2 One of the easiest paths out
of Yellowstone runs through a bottleneck, “quarter-mile-square area at the mouth of Beattie
Gulch . . . .”3 The Federal Agencies have turned Beattie Gulch into a killing field. See [2019]
Operating Procedures for the IBMP (Dec. 31, 2018) (the 2019 Winter Decision), Ex. D. There,
dozens of hunters, often with their families, scramble for a prize as they gun down bison,
including pregnant females and calves, as soon as the bison step foot out of Yellowstone onto
Forest Service land. See Yellowstone Buffalo Hunt: A Native Perspective, Buffalo Field
Campaign (May 31, 2018), youtube.com/watch?v=9GfoDhk6WGY (video exhibit Plaintiffs will
lodge).
The Federal Agencies give hunting priority to Native American tribes who claim that their
treaties reserved aboriginal bison hunting rights. See 2019 Winter Decision 3. In winter 2012-
1 Scientists classify plains bison as Bison bison bison. S.M. Adams & A.R. Dood, Background Info. on Issues of Concern for Mont.: Plains Bison Ecology, Mgmt., and Conservation, Mont. Dep’t of Fish, Wildlife and Parks 7 (June 2011) (Plains Bison Ecology), Ex. A. 2 Interagency Bison Mgmt. Plan Final Envtl. Impact Statement (IBMP FEIS) 192, Ex. B. 3 Letter from Montana Wildlife to Interested Person (Sept. 2, 2018) (2018 Mont. Letter), Ex. C.
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2013, the Federal Agencies began allowing four tribes to hunt in Beattie Gulch.4 By 2019, four
tribes had expanded to six. 2019 Winter Decision 6. In the meantime, the number of bison kills
there has increased from zero in 1990 to 2005, to 59 in 2007, and to 389 in 2016-2017.5
The dramatically expanded and escalating tribal hunt has forced neighbors—some only a few
hundred yards away—to bear the economic costs and physical risks of the slaughter. The hunt
puts those neighbors in extreme physical danger from dozens of excited and poorly managed
hunters shooting haphazardly at groups of bison; the hunt causes extreme noise; and, perhaps
worst of all, the hunt leaves tens of thousands of pounds of rotting, potentially disease-laden
bison carcasses littered across this small geographic area. Local residents can only flee their
homes and abandon their businesses during the winter. For years, the Federal Agencies have
ignored the local residents’ plight and the extreme dangers of the hunt because they seem to
think they have no alternatives to this gruesome, unsanitary, and dangerous hunt.
The Federal Agencies misapprehend their legal authorities. They deny jurisdiction over the
hunt, although Congress gave the Forest Service authority “to regulate [the national forests’]
occupancy and use,” which includes ensuring public safety. 16 U.S.C. § 551 (the Forest Service
Organic Act). Also, Congress assigned the Park Service broad discretion to manage surplus
Yellowstone bison in Yellowstone, and even beyond its boundaries. Act of January 24, Pub. L.
No. 67-395, 43 Stat. 1174, 1214 (codified at 16 U.S.C. § 36) (the Yellowstone Management Act
Amendments). Finally, although the Federal Agencies control and even pay for bison
management, they have failed to complete the analysis that the National Environmental Policy
4 Mem. to Files, IBMP Agencies, Adaptive Management Adjustments to [IBMP] and [NEPA/MEPA] Documentation 11 (Dec. 1, 2011) (2011 Document), Ex. E. 5 See Chris Geremia et al., Status Report on the Yellowstone Bison Population, Park Service (Sept. 2017), Ex. F.
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Act (NEPA), 42 U.S.C. §§ 4321-4370m-12, requires. The Federal Agencies have violated the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, by misinterpreting their authority
and by arbitrarily and capriciously failing to consider important aspects of the bison hunt.
The balance of the harms weighs heavily in favor of a temporary restraining order and
preliminary injunction to temporarily halt the bison hunt until the Federal Agencies fulfill their
duties, complete the analyses the law requires, and minimize the dangers of the hunt to local
property owners, neighbors, and visitors.
LEGAL BACKGROUND
I. Yellowstone Enabling Act and Amendments
In 1872, Congress created Yellowstone National Park as the first national park in the world.
IBMP EIS xxx. Congress designated Yellowstone a “public park or pleasuring ground for the
benefit and enjoyment of the people.” 16 U.S.C § 21. To preserve Yellowstone, Congress
assigned “exclusive control” of it to the Secretary of the Interior. Id. It assigned duties to
“provid[e] for the preservation, from injury or spoliation . . . the natural curiosities, or wonders,
within the park, and their retention in their natural condition.” Id.
But Congress did not stop there. About twenty years after establishing Yellowstone, it
responded to bison poaching by prohibiting hunting in Yellowstone. 16 U.S.C. § 26. In 1923,
about fifty years after establishing Yellowstone, Congress delegated authority to the Secretary of
the Interior to donate Yellowstone bison to “Federal, State, county, and municipal authorities for
preserves, zoos, zoological gardens, and parks.” Yellowstone Management Act Amendments. It
also authorized the Secretary to “sell or otherwise dispose of the surplus” Yellowstone bison. Id.
II. Forest Service Management Statutes
The Forest Service manages the National Forests under the Forest Service Organic Act of
1897, 16 U.S.C. §§ 472-482, 551, the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), id.
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§§ 528-531, and the National Forest Management Act of 1976 (NFMA), id. §§ 1600-1614. The
Organic Act gives the Forest Service broad authority to “to regulate [the national forests’]
occupancy and use.” Id. § 551.
III. The National Environmental Policy Act
NEPA requires federal agencies to “ensure[] that the[y] will not act on incomplete
information, only to regret [their] decision after it is too late to correct.” Marsh v. Or. Nat. Res.
Council, 490 U.S. 360, 371 (1989). It also requires agencies to make information broadly
available, so “the public and other government agencies [can] react to the effects of a proposed
action at a meaningful time.” Id. NEPA established the Council on Environmental Quality
(CEQ), and CEQ promulgated regulations to govern NEPA compliance. 42 U.S.C. § 4342; see
40 C.F.R. §§ 1500.1-1517.7; Implementation of Procedural Provisions, 43 Fed. Reg. 55,978
(Nov. 29, 1978); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989).
NEPA requires an agency to “take a hard look at environmental consequences” of “major
Federal actions.” Robertson, 490 U.S. at 350 (quotation marks and citation omitted); 42 U.S.C.
§§ 4321, 4332(2)(C); 40 C.F.R. § 1500.1(c). The hard look ensures that agencies “consider every
significant aspect of the environmental impact of a proposed action” and “inform the public” of
their analyses and conclusions. Balt. Gas & Elec. Co v. NRDC, 462 U.S. 87, 97 (1983).
When a major federal action may significantly affect the environment, NEPA requires the
acting agency to analyze the action in an environmental assessment (EA) or in an environmental
impact statement (EIS). 40 C.F.R. §§ 1501.3, 1501.4. As part of that process, NEPA requires the
agency to compile a draft EIS, id. § 1502.9(a), and to present that draft to the public and to other
agencies for notice and comment. Id. § 1503.1(a). After the agency evaluates and responds to the
comments, it prepares a final EIS. Id. § 1502.9(b). This process culminates in a record of
decision that explains the agency’s rationale. Id. § 1505.2.
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FACTUAL BACKGROUND
During the 1990s, several federal agencies and Montana developed a bison management
plan. They issued the final Plan in 2000. Membership has expanded. Now, the Interagency Bison
Management Plan (IBMP) members include nine agencies, tribes, and organizations:
1. The Park Service, 2. The Forest Service, 3. USDA Animal Plant Health Inspection Service (APHIS), 4. The Montana Board of Livestock (Montana Livestock), 5. The Montana State Veterinarian, 6. Montana Fish, Wildlife and Parks (Montana Wildlife), 7. The Confederated Salish and Kootenai Tribes, 8. The Nez Perce Tribe, and 9. The Intertribal Buffalo Council.
IBMP Partner Protocols 2 (Aug. 28, 2018), Ex. G.
These members have implemented the bison management plan for almost twenty years as
their plan has changed. Today, the bison management plan does not even remotely resemble the
plan the group created in 2000. Federal IBMP Record of Decision (the IBMP ROD), Ex. H. At
that time, no one foresaw an intense, concentrated bison hunt in Beattie Gulch. As a result, no
agency has analyzed the impacts of the concentrated hunting in Beattie Gulch on human health
and safety.
I. Bison Form an Integral Part of the Greater Yellowstone Ecosystem.
The Greater Yellowstone Ecosystem qualifies as the “largest and most nearly intact
ecosystem in the contiguous United States.” IBMP FEIS vi. Before Europeans arrived in the
Americas, bison ranged from Idaho and North Dakota south to the Rio Grande. IBMP FEIS 17
(map). In more recent times, the United States made Yellowstone a sanctuary for a population of
wild and free-ranging bison. See 16 U.S.C. § 36; All. for the Wild Rockies v. USDA, 772 F.3d
592, 595 (9th Cir. 2014). In 2017, the Park Service counted 4,816 bison in Yellowstone. 2018
Annual Report of the [IBMP] 4, Ex. I.
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The IBMP agencies consider bison an “essential component” of Yellowstone because they
“contribute to [its] biological, ecological, cultural, and aesthetic purposes . . . .” IBMP EIS i.
Nonetheless, the ecosystem in Yellowstone spreads beyond its boundaries. Id. at i. When food
runs out during winter, bison often migrate out of Yellowstone to lower elevations in search of
more. See Bison Winter Movements Map, id. at 31. That winter migration increases the
likelihood that bison might mingle with cattle. Id. at 305. The IBMP agencies, however, seek to
prevent that mingling because Montana ranchers fear the bison transmitting brucellosis to cattle.
Id. at 27, 130, 305 (“Strategies to ensure separation of cattle and bison explained above would be
the primary means to manage the risk of transmission. . . . In areas where cattle are present in the
winter, bison are not allowed.”).
II. Montana Views Brucellosis as a Threat to the Cattle Ranching Industry.
Brucellosis in Montana’s cattle could cost the agriculture industry tens of millions of dollars
per year. The bacterium Brucella abortus causes brucellosis in cattle. Id. at ix. It has no cure. Id.
Brucellosis can cause calves to abort, can slow weight gain in calves, and can delay calving until
later in a cow’s life. Id. at xii. In humans, Brucella abortus causes undulant fever. Id. at xliv. If
left untreated with antibiotics, undulant fever can cause, for several weeks or months,
intermittent fever, chills, night sweats, body and joint pain, poor appetite, and weakness. Id. at
xliv-xlv; APHIS EA, Evaluation of GonaCon™ as a Means of Decreasing Transmission of
Brucella abortus in Bison in the Greater Yellowstone Area (APHIS EA) (May 2012) 2, Ex. L.
Brucella abortus spreads when new hosts ingest contaminated birth materials. IBMP EIS x.
Cattle and bison ingest that material when they socially sniff or lick a newborn calf, the
afterbirth, or an aborted fetus; or when calves drink milk from infected mothers. APHIS EA 1.
Under some conditions, the bacteria can survive on fetal tissues, vegetation, and soil for as long
as eighty-one days. Id. Humans can catch Brucella abortus when they drink unpasteurized milk,
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or when they directly contact infected animal tissues, like aborted fetuses or reproductive
materials. APHIS EA 2. Vaccines can prevent some cows and bison from catching brucellosis,
but no vaccine prevents transmission one hundred percent. IBMP EIS ix.
APHIS leads the state and federal agencies’ long efforts to eliminate brucellosis from cattle
in the United States. APHIS EA 2. They have nearly completed that task. As of July 2009, it had
classified all 50 States as Class-Free (disease-free) of brucellosis for domestic cattle and bison.
APHIS EA 2. The Greater Yellowstone Ecosystem presents the last hurdle to eliminating
brucellosis in wild elk and bison. Id.
Montana covets its class-free brucellosis status. When APHIS designates Montana as “class-
free,” it assures purchasers that cattle from Montana do not have brucellosis. IBMP EIS 39. In
the past, when purchasers have perceived that Montana cattle could have brucellosis, they have
demanded Montana cattle ranchers to test their cattle before a sale. Id. Testing alone could cost
the Montana cattle industry $5.1 to $16.3 million per year. Id. at 338 (in 2000 dollars). Montana
cattle prices could fall, and that could conceivably cost Montana cattle ranchers $4.7 to $22.5
million per year. Id. The losses would “be far from crippling,” but could severely hurt some
cattle producers. Id. at 339. For comparison, Montana cattle producers sold, on average from
1995-2000, $730 million of cattle and calves each year. Id. at 39.
In 1994, APHIS informed the Montana State Veterinarian it intended to revoke Montana’s
class-free designation if Montana failed to stop bison leaving Yellowstone. Id. at 39. Montana
felt frustrated that the United States’ right hand was making threats while the left hand, the Park
Service, was actually causing the risk by failing to manage bison leaving Yellowstone. See Mont.
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Final Bison Hunting EA II (Sept. 30, 2004), Ex. J. So Montana sued the United States.6 The
federal agencies and Montana ultimately settled the case and agreed to finish the bison
management plan that they had started years earlier.7
III. Montana Agreed to the Bison Management Plan the U.S. Agencies Proposed.
After settling their case in 1996, and after issuing a draft environmental impact statement on
bison management in 1998, the Park Service, the Forest Service, and APHIS reached an impasse
with Montana. Id. at 1. Montana had demanded the Park Service vaccinate every bison in
Yellowstone before Montana would “tolerate” untested bison outside Yellowstone. Id. at 10. The
Park Service, the Forest Service, and APHIS explained that the existing science could not
support that decision, but they assured Montana that their current plan would protect Montana’s
livestock industry. Id. at 3-11. The agencies reconciled after the Park Service, the Forest Service,
and APHIS issued their EIS.
In 2000, the Park Service, the Forest Service, and APHIS declared that they intended “to
maintain a wild, free ranging population of [Yellowstone] bison and address the risk of
brucellosis transmission to protect the economic interests and viability of the livestock industry
in Montana.” See IBMP EIS 22. The IBMP EIS analyzed three alternatives that allowed public
bison hunting, if the Montana Legislature authorized a fair-chase hunt for bison. See id. at xx.
Alternative 3 would have relied on public bison hunting to regulate the bison population and
distribution outside Yellowstone. IBMP EIS xviii. Alternative 4 would have added public
hunting as “another tool . . . to help agencies control population numbers and distribution.” Id. at
6 See Intertribal Bison Co-op. v. Babbitt, 25 F. Supp. 2d 1135, 1137 (D. Mont. 1998); Montana v. Babbitt, No. 95-6-H-CCL (D. Mont. 1995). 7 Letter from James R. Lyons, Undersecretary for Natural Resources and Env’t, USDA, et al. to Marc Racicot, Montana Governor 2 (Dec. 13, 1999), IBMP FEIS 714, Ex. K.
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xx. Alternative 7 would have allowed “low levels of hunting” in special management areas
outside Yellowstone. Id. at xxii.
In the end, the Park Service, the Forest Service, and APHIS did not choose any of those
alternatives. Instead, they chose a management strategy that slightly altered the IBMP EIS
modified, preferred alternative. IBMP ROD 5. Those modifications likely resulted from further
negotiations with Montana. See Cover Letter, Mont. IBMP ROD (Dec. 22, 2000), Ex. L.
Eventually, Montana, the Park Service, the Forest Service, and APHIS adopted the same
management plan. Montana issued a separate record of decision to satisfy the Montana
Environmental Policy Act (MEPA), Mont. Code Ann. §§ 75-1-101 to 324. Mont. IBMP ROD.
The IBMP ROD initially allowed some bison to exit Yellowstone in winter to forage in an
area north of Gardiner, Montana, toward Yankee Jim Canyon. IBMP ROD 29 (map designating
area as “Zone 2”). In spring, the IBMP agencies expected Montana to move those bison back
into Yellowstone by herding or “hazing” them with riders on horseback, vehicles, or helicopters.
IBMP ROD 11, 51 (helicopters); IBMP EIS 85.
The IBMP agencies adopted a three-step adaptive management approach for “bison on winter
range outside Yellowstone . . . .” IBMP ROD 10; Mont. IBMP ROD 4. As they learned more
about bison management, they intended to adapt and to take incremental steps forward. IBMP
ROD 10. Under step 1, north of Yellowstone, the IBMP agencies intended to “haze” the bison to
keep them within Yellowstone. Id. at 11-12. If that failed, they would capture, test, and vaccinate
the bison that escaped. Id. They intended to start step 2 in the 2002 winter. Id. at 12. Under step
2, they intended to allow incrementally more bison, tested and clean of brucellosis, north of
Yellowstone until April 15. Id. Then, Montana intended to haze any remaining bison back into
Yellowstone. See id. Step 3 would extend Step 2 to untested bison. Id. at 13.
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Before the Federal Agencies issued their 2000 ROD, the Park Service had started culling the
bison population within Yellowstone to ensure the population did not exceed 3,000. IBMP ROD
52. Now, the Park Service decides how many bison to slaughter as they migrate north out of
Yellowstone to “meet population management and conflict resolution objectives.” 2019 Winter
Plan 4. The Park Service lets some of the bison continue north for hunters, quarantines some for
research, and transfers some to the Assiniboine and Sioux Tribes’ Fort Peck Reservation. 2019
Winter Plan 10-13. See Beth Cataldo, The Secret of Beattie Gulch (Sept. 23, 2019),
youtube.com/watch?v=AUSEPP7WOAA (demonstrative video exhibit Plaintiffs will lodge with
the Court showing the bison migration pattern out of Yellowstone toward Beattie Gulch).
When the Park Service slaughters migrating bison, it distributes the “meat, hides, and other
bison parts to support tribal nutrition and culture; thereby allowing more tribal members to
benefit from the healthy benefits bison provide.” Id. at 11. Some years, the Park Service has not
slaughtered any bison, but some years it captures up to 700, 800, and even 1,200 bison at the
Stephens Creek facility for transport to slaughterhouses. 2018 Annual Report of the [IBMP] 16-
17 (Dec. 31, 2018).
As the agencies implemented the IBMP plan, the United States paid for it, but Montana
called the shots. Between 2002 and 2008, the agencies spent $2 million to implement the IBMP.8
Montana paid only $100,000 and the U.S. paid the other $1.9 million. Id.9
8 General Accountability Office, Interagency Plan and Agencies’ Management Need Improvement to Better Address Bison-Cattle Brucellosis Controversy at PDF page 2 (Mar. 2008), Ex. M. 9 Montana has continued analyzing areas where bison could roam outside Yellowstone. In 2015, it designated more land west of Yellowstone. Decision Notice, Year-round Habitat for Yellowstone Bison 7 () (Nov. 2015), Ex. O.
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The agencies negotiated and reached agreements based on their understanding of their
jurisdiction. The Federal Agencies believe that their jurisdiction over Yellowstone bison ends at
Yellowstone’s border. See Answering Br. for the Fed. Appellees 4, Cottonwood Envtl. Law Ctr.
v. Bernhardt, appeal docketed, No. 19-35150 (9th Cir. Aug. 2, 2019). The Federal Agencies take
the position that, “[w]ithin the Park, the [Park Service] has exclusive jurisdiction to manage the
Park’s natural resources, including bison . . . . Outside the Park within the State of Montana—
including within the Gallatin National Forest . . . —the State has authority to manage bison, and
state law permits them to be hunted.” Id.
IV. Hunting Has Continued Escalating Since the 2000 IBMP EIS.
Since 2000, Montana has completed two EAs to change bison management. The Park
Service and the Forest Service have completed no further EISes or EAs. In 2005, as the 2000
IBMP EIS had anticipated, Montana reestablished bison hunting for the first time since 1991.10
The 2003 Montana Legislature authorized Montana Wildlife to consult and to cooperate with
Montana Livestock to issue rules for “fair chase hunting of wild buffalo or bison . . . .” S. Bill
395 § 1(d) (codified as amended at Mont. Code Ann. § 81-2-120 (2019)),
leg.mt.gov/bills/2003/billpdf/SB0395.pdf, Ex. N. In particular, the Montana Legislature limited
hunters to hunting only “on foot and away from public roads.” Id.
Following the Montana Legislature’s direction, in 2004, the Montana agencies issued an
environmental assessment and a decision notice under MEPA. They explained that, in the 1980s,
the Montana Legislature had stopped bison hunting in response to negative publicity from bison
hunts in the 1980s. Mont. Final Bison Hunting EA 20 (Sept. 30, 2004), Ex. M. Now that
Montana reauthorized bison hunting, Montana Wildlife decided to implement fair-chase hunts in
10 2018 Mont. Letter; IBMP FEIS xx.
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specific locations, and only during an annual season that it would set. Bison Hunting Decision
Notice 25, Ex. P. Montana Livestock and the Montana State Veterinarian agreed. Id. at 26. By
2007, Montana Wildlife set the bison hunting season from November 15 to February 15. IBMP
Operating Procedures 9 (Dec. 6, 2002, updated Nov. 16, 2007), Ex. Q.
In 2011, the Park Service, the Forest Service, and the other IBMP partners concluded that
their various changes to the bison management plan did not amount to a significant change. 2011
Document. Among other changes, the agencies approved increasing tribal hunting opportunities.
Id. at 2, 5. They concluded that “Tribal treaty hunters [need only] follow their own regulations,”
but they expected Montana Wildlife to coordinate with the tribes, so the impacts would remain
within the scope of alternatives the agencies analyzed in the IBMP EIS. Id. at 11
APHIS also relaxed its protocols for downgrading a state from its status as “class-free” of
brucellosis. Id. The changes allowed states to “investigate[] and contain[]” outbreaks without
losing their status. Id. The IBMP agencies concluded that the existing NEPA and MEPA
analyses already reviewed the environmental effects of the changes they had made to the bison
management plan. Id. at 8.
In the first year under the 2011 changes, hunters killed more bison north of Yellowstone than
they had killed there in the prior seven years combined.
Year Total Bulls
Total Cows
Total Unknown
Annual Total
Running Total
2005 27 0 0 27 27 2006 18 1 26 45 72 2007 19 6 34 59 131 2008 1 0 0 1 132 2009 1 0 0 1 133 2010 2 0 5 7 140 2011 2 0 0 2 142 2012 98 43 33 174
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Bison Harvest Data, Winter 2005 - 2012, Ex. R. The potential for 174 kills per year changed the
character of hunting in Beattie Gulch. Hunting there dramatically intensified—without the
Federal Agencies analyzing its impacts.
V. The Hunt Has Increased Dangers to Property Owners, Neighbors, and Visitors.
The Forest Service has made minor alterations to hunting configurations, but more hunters
have participated and killed more bison, and the danger of the hunt to property owners,
neighbors, and visitors has increased over time. 2018 Mont. Letter. By the 2016-2017 winter,
hunters had killed 389 bison in Beattie Gulch. Ex. F. Montana Wildlife understands the danger to
people, but like the Park Service and the Forest Service, it has failed to make the hunt safer.
Beattie Gulch hunters shoot bison only about 200 yards from over a dozen private residences
and businesses. See Bonnie Lynn Decl. ¶ 28, Ex. S; Ex. U. Neighbors Against Bison Slaughter
(Neighbors) members own property, live, or visit their property between Old Yellowstone Trail,
South, on the west, and the Yellowstone River, on the east. Some even live east of Beattie Gulch
and east of the conservation easements connected to Devil’s Slide. See IBMP EIS 33 (map). A
condominium association of cabins sits directly on the Yellowstone River. Lynn Decl. ¶¶ 1, 6, 8.
Although the Forest Service has failed to provide a safe bison hunt in Beattie Gulch, it has
acknowledged its authority to regulate hunting there. According to Montana, in 2015, the Forest
Service closed eighteen acres to hunting for safety.11 Two years later, it pushed hunting farther
west of Old Yellowstone Trail, South, and deeper west into Beattie Gulch.12
In the fall of 2018, Montana Wildlife proposed closing part of Beattie Gulch to Montana-
licensed hunters because too many hunters were shooting too many bison on too small of an
area. Montana found, “[i]n recent years, 200-300 bison are harvested every year within a quarter-
11 Montana Wildlife, Hunting Season/Quota Change Supporting Info. 2 (Sept. 19, 2019), Ex. T. 12 See Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017), Ex. U.
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mile-square area at the mouth of Beattie Gulch and the density of hunters has increased beyond
what [Montana Wildlife] considers safe.” 2018 Mont. Letter. Commonly, “20-30 or more hunters
. . . shoot simultaneously as groups of bison cross the boundary.” Id. Montana had recognized
that “the safety issues continue to escalate and the fear for injury or death to hunters is real.”13
In the end, Montana Wildlife pulled that proposal to close Beattie Gulch hunting without
explaining why. See Summary Report from the [IBMP] Meeting 6 (Nov. 28, 2018), Ex. W. The
status quo won out over safety again. Montana Governor Steve Bullock has recognized a pattern
of complexities driving bison management decisions back to the status quo, even when no one
prefers it: “On-going rancor regarding [Yellowstone] bison management can lead to indecision
or a default to status quo or a ‘no action’ alternative, regardless of whether the current
management is effective.” [Mont.] Decision Notice, Year-round Habitat for Yellowstone Bison 7
(Nov. 2015).
Montana Wildlife has generally considered the impacts of hunting on new subdivisions, but
no one has analyzed those particular effects in Beattie Gulch in any NEPA document. Montana
Wildlife has found that bullets from a rifle can travel between one and four miles.14 It has
recognized that “occasional stray bullets can threaten [residents’] safety or damage their homes.”
Id. In other words, property owners, neighbors, and visitors could die in their living rooms from
a single hunter’s mistake or failure of judgment because the Federal Agencies refuse to act.
Moreover, the Federal Agencies have created circumstances that drastically increase the chances
of those mistakes or failures of judgment. One resident near Beattie Gulch saw “saw a tribal
13 Letter from Dave Loewen, Montana Wildlife Chief of Law Enforcement, et al. to Sam Sheppard, R3 Supervisor et al. (Jan. 27, 2017) (2017 Mont. Letter), Ex. V. 14 See [Montana Wildlife] Recommendations for Subdivision Development, App’x C.3, fwp.mt.gov/fwpDoc.html?id=55372, Ex. X.
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game warden’s signal lights as he raced to where a shooter was firing at other people.” Sue
Oliver Decl. ¶ 5, Ex. Y. That danger not only evicts the property owners, neighbors, and visitors
from their homes and property, but also scares away visitors who would rent the cabins there.
Lynn Decl. ¶ 36.
Bison hunters leave behind hundreds of “gut piles,” each of which can weigh hundreds of
pounds. See IBMP EIS 324 (estimating bison weigh between 900 and 1,100 pounds, and
estimating that hunters take only 60 % of that weight). This offal rots in the open, attracts
wildlife, and raptors and ravens drop it into trees and yards on private property, and turns the
entire local area into an open-air charnel house. Lynn Decl. ¶¶ 30-35. The gut piles risk
transmitting Brucella abortus and threaten the health of other animals and people. Dr. Peter Nara
Decl. ¶¶ 16-18, Ex. Z.
For years, property owners, neighbors, and visitors have objected at regular IBMP public
meetings. Lynn Decl. ¶¶ 60-64. The IBMP has ignored and sidelined their legitimate concerns
and done nothing to limit the hunt, as the hunting forces property owners, neighbors, and visitors
to flee the area for months at a time, causes their businesses to lose money, and severely
traumatizes them. Id. ¶¶ 2, 24, 36, 40, 59. The hunt has continued to expand as the Federal
Agencies have allowed more bison to leave Yellowstone and have allowed more hunters to kill
bison there. Rather than address this untenable and escalating situation, the Federal Agencies
have foisted the dangerous and concentrated impacts of bison hunting onto a small group of
private property owners, neighbors, and visitors. Id. ¶¶ 36, 63.
The hunt has stopped one Neighbor member, Bonnie Lynn, from renting her cabins as
vacation rentals in the winter. Id. ¶¶ 40, 41. She was planning to use the cabins to fund her
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modest retirement plans, but because the cabins are no longer covering their costs, she nearly
sold one cabin to help her make ends meet. Id. ¶¶ 11, 48-50.
STANDARDS OF REVIEW
I. Administrative Procedure Act
Congress created a private cause of action and waived sovereign immunity for claims like
these in the Administrative Procedure Act. “A person . . . adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5
U.S.C. § 702. The APA directs the Court to “hold unlawful and set aside agency action, findings,
and conclusions” that qualify as
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “short of statutory right,” or “without observance of procedure required by law.”
Id. § 706(2)(A), (C), (D). It also requires this Court to “compel agency action unlawfully
withheld . . . .” 5 U.S.C. § 706(1).
The Supreme Court has identified several agency actions that would qualify as arbitrary and
capricious:
If “the agency has relied on factors which Congress has not intended it to consider,”
If the agency “entirely failed to consider an important aspect of the problem,”
If the agency “offered an explanation for its decision that runs counter to the evidence before [it]”, or
If the decision “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm), 463
U.S. 29, 43 (1983).
The APA affirmatively requires the agency not only to “examine the relevant data,” but also
to “articulate a satisfactory explanation for its action” that includes a “rational connection
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between the facts found and the choice made.” Id. at 43 (quotations omitted). Courts may not
simply “rubber-stamp” agency action if it is “inconsistent with a statutory mandate” or if it
“frustrate[s] the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 292
(1965); N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th Cir. 2012).
II. Preliminary Injunction and Temporary Restraining Order
Courts issue “interim equitable relief” like temporary restraining orders and preliminary
injunctions “to balance the equities as the litigation moves forward.” Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). Courts consider “the same factors
in ruling on a motion for a temporary restraining order and a motion for a preliminary
injunction.” Morgan Stanley DW, Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). Courts
issue temporary restraining orders and preliminary injunctions when a plaintiff establishes “that
[it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the
public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008).
ARGUMENT
I. Neighbors is Likely to Prevail on its Legal Claims.
The Park Service and the Forest Service misapprehend their statutory authorities. As a result,
they have left a vacuum of control over Yellowstone bison and hunting on Forest Service land.
The Federal Agencies have failed to comply with NEPA by hiding behind Montana’s
environmental analysis instead of doing their own. Primarily, they have failed to analyze all
Yellowstone bison management decisions, including hunting, as a single connected action in a
single environmental impact statement. See 42 C.F.R. § 1508.25. Neighbors will likely prevail
on these claims.
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A. The Forest Service Unreasonably Regulated the Land Congress Assigned it to Regulate.
The Forest Service has failed to consider the safety of citizens from the concentrated bison
hunting on National Forest System land in Beattie Gulch. The Forest Service has violated its
management duty to protect the public, and it has violated the APA by “entirely fail[ing] to
consider an important aspect of the problem . . . .” State Farm, 463 U.S. at 43.
Congress directed the Forest Service to “to regulate [the national forests’] occupancy and
use.” 16 U.S.C. § 551, id. §§ 521a, 1609. It required the Forest Service to cooperate with states
as they enforce state laws on Forest Service lands, which include laws “with regard to stock . . .,
and for the protection of fish and game . . . .” Id. §§ 551a, 553. The Forest Service’s regulations
further authorized it to close areas for “Public health or safety.” 36 C.F.R. § 261.53(e).
With that authority, the Forest Service owes a “degree of protection” to United States citizens
and property owners. See United States v. Union Pac. R. Co., 91 U.S. 72, 80 (1875) (recognizing
the general government obligation); Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961)
(“The Government of course has an obligation to protect its citizens from harm.”). The Property
Clause gives the United States jurisdiction to implement those public safety protections on its
own lands regardless of Montana’s laws or regulations. See Hunt v. United States, 278 U.S. 96,
100 (1928) (“the power of the United States to thus protect its lands and property does not admit
of doubt . . . ., the game laws or any other statute of the state to the contrary notwithstanding.”);
see Martin Nie et al., Fish and Wildlife Management on Federal Lands: Debunking State
Supremacy, 47 Envtl. L. 797, 857-58 (2017) (Fish and Wildlife Management).
Nonetheless, in the 2019 Winter Plan, the Forest Service left Montana “primary
responsibility regarding the public bison hunt, in cooperation with [Montana Livestock], as
directed by state statute.” 2019 Winter Plan at 3. The Forest Service believes it lacks jurisdiction
to manage the hunt. Id.; see IBMP ROD 21 (“[B]ison that leave YNP are under the management
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jurisdiction of the State of Montana.”)).15 The Forest Service left Montana Wildlife to “work
with landowners who have human safety and property damage concerns.” 2019 Winter Plan 5.
But the Forest Service misapprehends its jurisdiction.
The Forest Service’s actions demonstrate that it has authority to close areas for public safety.
See 2019 Winter Plan 3 (recognizing authority to implement 36 C.F.R. Part 261). And indeed, it
has closed two areas around Beattie Gulch. In 2015, the Forest Service shut down hunting on
eighteen acres there. Montana Wildlife, Hunting Season/Quota Change Supporting Information 2
(Sept. 19, 2019). In 2017, the Forest Service pushed bison hunting about 200 yards deeper into
Beattie Gulch. Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017).
Nonetheless, the Forest Service has violated the APA by failing to explain that contradiction:
why it closes some areas, while leaving most of Beattie Gulch open to bison hunters who
endanger property owners, residents, and visitors.
The Forest Service has violated the APA by failing to consider the particular impacts of
concentrated hunting at Beattie Gulch on the local property owners, neighbors, and visitors. See
State Farm, 463 U.S. at 48-49 (finding an APA violation because “[t]here are no findings and no
analysis here to justify the choice made, no indication of the basis on which the [agency]
exercised its expert discretion.” (quotations omitted)).
Moreover, the Forest Service never completed the analysis it promised in the IBMP ROD,
and it never explained why it did not do that analysis. In the 2000 IBMP Record of Decision, the
Federal Agencies deferred further NEPA analysis of hunting: “Until the federal agencies review
15 Cottonwood Envtl. Law Ctr. v. Zinke, Fed. Defs.’ Br. in Supp. of Mot. to Dismiss 8 (Apr. 23, 2018), ECF No. 18-1 (“Thus, the hunt is occurring outside of [Park Service] land, on lands open to hunting, under the jurisdictional authority of the state of Montana and the respective tribes.”), appeal docketed, No. 19-35150 (9th Cir. Aug. 2, 2019).
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actual bison hunting proposals, we cannot opine as to the necessity of additional NEPA
compliance to implement a public hunt as part of the Joint Management Plan.” IBMP ROD 15.
But the Forest Service never completed that analysis; instead, it left Montana to do it without
explaining why the Forest Service did not do it for the 2019 Winter Plan.
The APA requires “a more detailed justification than what would suffice for a new policy
created on a blank slate . . . when . . . its new policy rests upon factual findings that contradict
those which underlay its prior policy . . . .” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). The Forest Service failed to provide any detailed justification for approving the
hunting configuration in the 2019 Winter Plan.
To be clear, the APA does not allow the Forest Service, the Department of Justice, or even
the Court to provide that justification now. Courts “may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” State Farm, 463 at 43, 52. They may not
accept “counsel’s post hoc rationalizations for agency action.” Id. Instead, they can only uphold
agencies’ decisions, “if at all, on the basis articulated by the agency itself.” Id. The Forest
Service acted arbitrarily and capriciously by delegating its promised analysis to Montana
Wildlife without explaining why.
Finally, now that the Forest Service let another agency assume the Forest Service’s authority,
the Forest Service has failed to respond to that other agency’s warnings. Montana Wildlife has
concluded that the hunting in Beattie Gulch “has increased beyond what [it] considers safe.”
2018 Mont. Letter. The “fear for injury or death to hunters is real.” 2017 Mont. Letter. Despite
these plain statements, the Forest Service has approved the hunting in Beattie Gulch in the 2019
Winter Plan. It continues to allow the bison hunt even as the volume of hunters and the danger
increase. The Forest Service never explained why it disagrees with Montana Wildlife, so it has
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arbitrarily and capriciously failed to consider the impacts of the 2019 Winter Plan on human life
and safety. The APA requires the Court to set aside the 2019 Winter Plan.
B. The Park Service Can Control the Bison Hunting in Beattie Gulch.
Just as the Forest Service can control the bison hunt on Forest Service land, the Park Service
also can control the Beattie Gulch bison hunt. The Park Service has misapprehended its
authority, so it has left Montana to fill the vacuum—without making a deliberate choice about
bison hunting. Because the Park Service could have made different decisions if it had understood
its authority, the APA requires the Court to set aside the 2019 Winter Plan.
1. Because the Park Service Can Prevent Bison from Leaving Yellowstone, it Can Exercise Complete Control over Hunting in Beattie Gulch.
Congress gave the Park Service authority to stop every Yellowstone bison from leaving
Yellowstone, and it can use that control to make the Beattie Gulch hunt safe for property owners,
residents, and visitors. Between 1996 and 2000, the Park Service actually implemented its
authority to keep bison from reaching Beattie Gulch (although east of there, the bison could exit
Yellowstone and move north). See IBMP EIS xvi. In the IBMP EIS, the Federal Agencies called
that the no-action alternative. Id.
Under the 2019 Winter Plan, the Park Service exercises its control much differently. Each
year, the Park Service effectively decides the maximum number of bison that leave Yellowstone.
See 2019 Winter Plan 4. It does not encourage bison to leave Yellowstone, but as the bison
naturally migrate across the border, the Park Service captures some bison at Stephens Creek for
slaughter, while allowing other bison into Beattie Gulch for hunters to shoot. See id. at 4
(“During capture operations, sufficient numbers of bison will be allowed to pass by the facility to
continue to provide treaty and state hunting opportunities.”), 10. As the trend moves toward
allowing hunters to kill more bison there, the Park Service can more easily meet its population
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objectives for bison in Yellowstone without capturing, feeding, transporting, and paying
slaughterhouses to process hundreds more bison. See id. at 9, 10-12. Thus, the Park Service can
control the hunt or stop it regardless of what Montana prefers. See Hancock v. Train, 426 U.S.
167, 179 (1976) (“Because of the fundamental importance of the principles shielding federal . . .
activities from regulation by the States, an authorization of state regulation is found only when
and to the extent there is a clear congressional mandate[ and] specific congressional action that
makes this authorization of state regulation clear and unambiguous.”).
2. The Yellowstone Management Act Amendments Gave the Park Service Authority Beyond Yellowstone’s Boundaries.
Separately, with the Yellowstone Management Act Amendments, Congress gave the Park
Service authority to control the bison hunt directly when it gave authority to “otherwise dispose
of” surplus Yellowstone bison. The Park Service has misapprehended that mandate by
concluding that its jurisdiction stops at the Yellowstone border. Only the correct legal
interpretation of the Act will allow the Park Service to make a reasoned decision.
Congress’s delegation to the Park Service overrides any state’s authority over Yellowstone
bison. Of course, the states “have broad trustee and police powers over wild animals within their
jurisdictions,” but “those powers exist only in so far as their exercise may be not incompatible
with, or restrained by, the rights conveyed to the Federal government by the Constitution.”
Kleppe v. New Mexico, 426 U.S. 529, 544, 545 (1976). The Supremacy Clause, the Property
Clause, and the Commerce Clause give Congress authority over Yellowstone bison, and
Congress delegated that authority to the Park Service in the Yellowstone Management Act
Amendments.
The Kleppe decision controls this case. There, Congress had passed the Wild Free-roaming
Horses and Burros Act, 16 U.S.C. §§ 1331-1340. It declared “[a]ll wild free-roaming horses and
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burros . . . to be under the jurisdiction of the [respective] Secretary for the purpose of
management and protection . . . “as components of the public lands . . . .” 16 U.S.C. § 1333(a).
When a rancher in New Mexico complained to the Bureau of Land Management (BLM) about
“several unbranded burros” near his grazing allotment, the BLM told him it would not remove
the burros. Kleppe, 426 U.S. at 533. New Mexico rounded up nineteen burros and sold them at
auction. Id. The BLM demanded New Mexico return them to public lands, but New Mexico
refused and filed suit. New Mexico argued that the Wild Horses and Burros Act violated “the
State’s traditional trustee powers over wild animals.” Id. at 541. The Supreme Court rejected
those arguments. It concluded that the Wild Horses and Burros Act fell within “the complete
power that Congress has over public lands,” which “includes the power to regulate and protect
the wildlife living there.” Id. at 540-41.
In Kleppe, the Supreme Court explained that the property clause “power . . . is broad enough
to reach beyond territorial limits.” Id. at 538. And “when Congress so acts, the federal legislation
necessarily overrides conflicting state laws under the Supremacy Clause.” Id. at 543. Finally, the
Supreme Court explained that, when “state laws conflict . . . with other legislation passed
pursuant to the Property Clause, the law is clear: The state laws must recede.” Id.; see Fish and
Wildlife Management, 47 Envtl. L. 797, 833 (“attempts to use the Tenth Amendment as a basis
for state sovereignty over federally protected wildlife have generally failed”). Courts have
extended Kleppe in a wide range of contexts. United States v. Bd. of Cnty. Comm’rs, 843 F.3d
1208, 1212 (10th Cir. 2016) (Forest Service trees); Wyoming v. United States, 279 F.3d 1214
(10th Cir. 2002) (elk management); Minnesota v. Block, 660 F.2d 1240, 1252 (8th Cir. 1981)
(motorboats).
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Here, the bison also cross state lines—even within Yellowstone, so the Commerce Clause
gives Congress additional authority to manage the Yellowstone bison. Congress carved
Yellowstone out of three different states (Montana, Wyoming, and Idaho), and these bison
migrate north into Montana from inside the Wyoming portion of Yellowstone. See IBMP EIS 31.
And the Yellowstone bison draw tourism that impacts interstate commerce. In 2000, the IBMP
agencies found that, every year, “United States citizens and people from all over the world spend
more than 9 million visitor days of recreation in developed sites of the Yellowstone area . . . .”
IBMP EIS xxx. Many of those visitors come to see bison. “[I]n modern times, wildlife viewing is
the primary activity for many visitors who come to [Yellowstone]. Bison are ranked as one of the
top 10 animals visitors hope to see on a visit . . . .” Id.
Therefore, because Yellowstone bison cross state lines and because they affect interstate
commerce, the Constitution gives Congress authority to regulate them directly—even when they
may cross into Montana and onto private lands. To this point, Chief Justice John Marshall
recognized that “[c]ommerce among the States, cannot stop at the external boundary line of each
State, but may be introduced into the interior,” and “[t]he power of Congress . . ., whatever it
may be, must be exercised within the territorial jurisdiction of the several States.” Gibbons v.
Ogden, 22 U.S. at 194, 196 (1824), quoted approvingly by Douglas v. Seacoast Prods., Inc., 431
U.S. 265, 276 (1977); see Kleppe, 426 U.S. at 538.16 Thus, when Congress delegated to the Park
Service authority over the Yellowstone bison, that authority extended into Montana.
16 Montana has asserted that its law prohibiting bison transfer supersedes the Park Service authority to transfer bison under 16 U.S.C. § 36. In particular, in 2016, it prohibited the Park Service from transferring forty-nine bison to the Assiniboine and Sioux tribes at the Fort Peck Reservation. Matthew Brown, Montana tribes seek wild bison transfer to reservation, Associated Press (Aug. 15, 2016), billingsgazette.com/news/state-and-regional/montana/montana-tribes-seek-wild-bison-transfer-to-reservation/article_420ae766-57ac-5db5-a250-c94a2461800a.html.
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3. Congress Understood the Critical Plight of Bison When it Assigned the Park Service the Duty of Distributing Bison More Broadly.
The history of bison underscores Congress’s intent in the Yellowstone Management Act
Amendments. The Supreme Court recognizes that “courts, in construing a statute, may with
propriety recur to the history of the times when it was passed; and this is frequently necessary, in
order to ascertain the reason as well as the meaning of particular provisions in it.” Union Pac. R.
Co., 91 U.S. at 79, quoted approvingly by Leo Sheep Co. v. United States, 440 U.S. 668, 669
(1979). The United States’ tragic, near-destruction of the bison species, and the bison’s tenuous
survival, explain Congress’s motivation to manage bison directly.
When Euro-American explorers arrived, they wrote, the plains are “black and appeared to be
moving” with the herds of bison. IBMP EIS xlv. Those explorers most commonly estimated the
bison numbered between 30 and 65 million. Id.
By the mid-1850s, consumers were demanding bison robes, so hunters sent hundreds of
thousands of bison hides east. Id. at 21-23. After the Civil War, as the United States turned its
attention to westward expansion, its army began supporting bison slaughter as a military tactic to
starve Native Americans and to eliminate a resource that Native Americans could use for barter.
Id. at 22. These forces obliterated the bison herds. See id.; but see IBMP EIS 364 (adding cattle-
born disease as one “contributing factor”). Between 1881 and 1884, bison almost vanished from
the plains. Plains Bison Ecology 24-25. By 1889, one expert estimated the entire plains and
wood bison population at 1,091. Id. at 27.
A few hundred bison hid out in Yellowstone. Id. at 28. At that time, however, no federal law
made poaching a crime, so federal agents could do nothing to punish poachers, and could only
escort them out of Yellowstone. Id. In 1894, Congress finally created protections for bison and
criminal penalties for poaching in Yellowstone. Act of May 7, 1894, Pub. L. No. 53-72, 28 Stat.
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73 (codified at 16 U.S.C. § 26). Unfortunately, that law did not stop bison numbers from
declining. By 1902, only twenty-three bison lived in Yellowstone. IBMP EIS 364; see Plains
Bison Ecology 28.
Those twenty-three bison, another small herd living wild in Texas, and a few private herds,
together comprised the remnants of the entire species. Plains Bison Ecology 28. A handful of
people, however, felt a “duty, privilege, and pleasure” at saving the bison. Id. Concerned citizens
started the American Bison Society in 1905. Id. at 31. They named Theodore Roosevelt as
honorary president. IBMP EIS 364. Those bison preservationists traded bison among each other
and helped bison numbers grow. Plains Bison Ecology 28-31. In 1908, the American Bison
Society selected thirty-four bison to start the National Bison Range in Moiese, Montana. Id. at
28-29; Act of May 23, 1908, Pub. L. No. 60-192, 35 Stat. 251, 267-68. Today, however,
scientists consider the Yellowstone herd as the only population that has continuously lived wild.
Plains Bison Ecology 34; IBMP EIS 364.
At the same time as the bison preservationists were exchanging bison to save the species,
Congress gave broad authority to the Park Service over the Yellowstone bison herd in the
Yellowstone Management Act Amendments.
4. Congress Assigned the Park Service Broad Discretion to Control Bison that Might Leave Yellowstone.
That history, combined with the ordinary meaning of the Yellowstone Management Act
Amendments, demonstrates that Congress preempted any conflicting state laws by giving the
Park Service broad discretion to manage the Yellowstone bison herd directly—and not just
within Yellowstone.17 A court’s “inquiry begins with the statutory text, and ends there as well if
17 The full text provides:
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the text is unambiguous” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). Here,
Congress gave the Park Service authority over the entire “Yellowstone National Park herd,” gave
it authority to decide what qualifies as “surplus” bison, and gave it authority to “otherwise
dispose of the surplus buffalo.” 16 U.S.C. § 36. The broad power to “otherwise dispose of” the
surplus bison lets the Park Service manage them wherever they may roam. See Greater
Yellowstone Coal. v. Babbitt, 952 F. Supp. 1435, 1443 (D. Mont. 1996) (“section 36 [i]s a statute
giving broad discretion to the [Park Service] to dispose of surplus bison.”).
Courts have recognized the word “dispose” as “a broad and inclusive word.” Waybright v.
Longstreet, 221 Ind. 251, 260, 46 N.E.2d 683 (Ind. 1943). For example, the U.S. Supreme Court
read a statute that asked whether a railroad had “sold or disposed of [land]” to include whether
the railroad had mortgaged that land. Platt v. Union Pac. R.R. Co., 99 U.S. 48, 66 (1878). Later,
when Congress used the phrase “dispose of” to define a firearms crime, the Supreme Court
recognized that Congress “aimed at providing maximum coverage” of the activities it wanted to
criminalize. Huddleston v. United States, 415 U.S. 814, 826-27 (1974).
Dictionaries from the time of the Yellowstone Management Act Amendments also confirm
this broad definition. They define the phrase “dispose of” broadly: “a to determine the fate of; to
fix the condition, employment, etc., of; to direct or assign for a use. Freedom to order their
actions and dispose of their possessions and persons. Locke. b To get rid of; to put out of the
Hereafter the Secretary of the Interior is authorized, in his discretion and under regulations to be prescribed by him, to give surplus elk, buffalo, bear, beaver, and predatory animals inhabiting Yellowstone National Park to Federal, State, county, and municipal authorities for preserves, zoos, zoological gardens, and parks: Provided, That the said Secretary may sell or otherwise dispose of the surplus buffalo of the Yellowstone National Park herd, and all moneys received from the sale of any such surplus buffalo shall be deposited in the Treasury of the United States as miscellaneous receipts.
Yellowstone Management Act Amendments (emphasis added).
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way; to finish with: as, to dispose of rubbish; to dispose of the morning’s mail. c To transfer to
the control of someone else as by selling; to alienate; to part with; to relinquish; to bargain away.
I have disposed of her to a man of business. Tatler.” Webster’s New International Dictionary 644
(1923), Ex. AA. These definitions extend Park Service jurisdiction beyond Yellowstone.
Moreover, Congress added the term “otherwise” before “dispose of,” and that term broadens
Congress’s delegation even further. The Supreme Court has recognized “otherwise” as another
“broad term.” See Gooch v. United States, 297 U.S. 124, 128 (1936). Using that word along with
“dispose of” underscores the doubly broad authority that Congress delegated to the Park Service
to manage the last surviving wild bison population in the world.
Thus, when Congress used the phrase “otherwise dispose of surplus” bison, it understood that
it was preserving for future generations a resource that had almost gone extinct. It understood
that the broad administrative powers it was delegating to the Park Service would include
deciding what to do with the Yellowstone bison herd as it expanded. Because Congress
delegated that broad authority directly over bison, and because Congress knew that bison move
across state lines, Congress could only have expected that the Park Service’s authority would
travel with them.
The Park Service, however, denies that Congress gave it this broad jurisdiction over bison.
The IBMP EIS concluded that, “[w]hen bison leave [Yellowstone], they are no longer within the
jurisdiction of the [Park Service], and management is governed by Montana statutes.” IBMP EIS
376 (citations omitted); see also Park Service-Montana Mem. of Understanding 6-7 (Mar. 18,
2014) (acknowledging separate jurisdiction). This statement is wrong as a matter of law, and the
APA requires the Court to set it aside. “Courts must, of course, set aside [agency] decisions
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which rest on an erroneous legal foundation.” NLRB, 380 U.S. at 292 (quotations omitted);
Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d 603, 609 (1st Cir. 1989) (Breyer, J.).
Contrary to the Park Service’s interpretation, the Yellowstone Management Act
Amendments delegated broad authority to the Park Service to regulate bison—regardless of
Montana’s laws. Even when “congressional enactments obviously curtail or prohibit the States’
prerogatives to make legislative choices respecting subjects the States may consider important,
the Supremacy Clause permits no other result.” Hodel v. Va. Surface Mining Recl. Ass’n, 452
U.S. 264, 290 (1981). The Park Service followed that inaccurate legal conclusion by deciding in
the 2019 Winter Plan that only Montana has jurisdiction to manage Yellowstone bison outside
Yellowstone, although bison may only leave temporarily. The Park Service violated the APA.
The Park Service’s legal error led it to fail to analyze the impacts of hunting on property
owners, neighbors, and visitors outside Yellowstone. To be clear, nothing mandates the Park
Service to exercise all of its authority and to take over the entire bison management scheme from
Montana, just as nothing stops the Park Service from relieving the bison population pressures in
Yellowstone by giving live bison to tribes throughout the United States. Whatever it decides in
the future, however, the Park Service’s legal error meant that, until now, it has never even
considered using its authority beyond the Yellowstone boundary. Therefore, in its latest action in
the 2019 Winter Plan, it arbitrarily and capriciously implemented the Yellowstone Management
Act Amendments and violated the APA. The Park Service can ensure public safety of the bison
hunt. It has acted arbitrarily and capriciously by failing to recognize that authority.
C. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan as Connected Actions.
NEPA also required the Federal Agencies to analyze the concentrated bison hunt. The entire
bison management plan qualifies as a major federal action, so NEPA required the Federal
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Agencies to analyze every aspect of the plan—including the concentrated hunt at Beattie Gulch.
Here, however, the Park Service and the Forest Service have done nothing while Montana
completed further analyses. In 2004, Montana Wildlife analyzed the impacts of Montana’s
hunting statute. Mont. Final Bison Hunting EA II (Sept. 30, 2004). In 2015, Montana looked for
other locations where it could allow wild bison to live. Decision Notice, Year-round Habitat for
Yellowstone Bison 7 (Map) (Nov. 2015). The Federal Agencies deferred to Montana’s analyses
and relied on those Montana analyses, although NEPA required federal analyses.
In direct contradiction of fundamental NEPA principles, the Federal Agencies have illegally
segmented the bison management plan into smaller decisions to avoid their NEPA obligations.
The NEPA regulations preclude separating some “major Federal actions” from others to avoid
finding a significant impact. 40 C.F.R. § 1508.25(a)(1); Big Bend Conservation All. v. FERC,
896 F.3d 418, 423-24 (D.C. Cir. 2018) (“the connected actions doctrine . . . prevent[s] the
government from ‘segmenting’ its own federal actions into separate projects and thereby failing
to address the true scope and impact of the activities that should be under consideration.”
(quotations omitted)); Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987).
NEPA requires agencies to analyze all major federal actions. 42 U.S.C. § 4332(C). When
agencies analyze a major federal action under NEPA, courts require agencies to take a “hard
look” at the environmental impacts of any action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21
(1976). The regulations require them to analyze not only direct impacts, but also indirect impacts
and cumulative impacts. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.18 NEPA requires federal
18 The regulations define direct effects as effects “caused by the action and [that] occur at the same time and place.” Id. § 1508.8(a). Indirect impacts include impacts “caused by the action and . . . later in time or farther removed in distance, but . . . still reasonably foreseeable.” Id. § 1508.8(b). Cumulative impacts include “the incremental impact of the action when added to
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agencies to analyze “[p]ossible conflicts between the proposed action and the objectives of
Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans,
policies and controls for the area concerned.” 40 C.F.R. §§ 1502.16, 1506.2(d).
NEPA regulations define “major federal actions” to include “programs . . . partly . . .
assisted, . . . regulated, or approved by federal agencies . . . .” 40 C.F.R. § 1508.18(a) (emphasis
added). To determine whether a project qualifies as a major federal action, courts analyze,
among other factors, whether the nonfederal officials would proceed without federal support and
whether “the function and utility of the challenged projects is substantially less dependent on”
federal support. Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975); Enos v.
Marsh, 769 F.2d 1363, 1372 (9th Cir. 1985). Courts have held that “a federal agency’s authority
to influence must be more than the power to give nonbinding advice to the nonfederal actor[;] the
federal agency must possess actual power to control the nonfederal activity.” Ka Makani ‘O
Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 961 (9th Cir. 2002) (quotations omitted);
Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir. 1988); Sugarloaf Citizens Ass’n v. FERC,
959 F.2d 508, 512 (4th Cir. 1992).
The Supreme Court has clarified some of these considerations with its pragmatic approach. It
requires courts to “look to the underlying policies or legislative intent in order to draw a
manageable line between those causal changes that may make an actor responsible for an effect
and those that do not.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774,
n.7 (1983). NEPA draws that manageable line at “the usefulness of any new potential
information to the decisionmaking process,” and an agency can use potential information if it has
other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7.
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“power to act on [that] information.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767-68
(2004). In other words, “control” over the projects subject to that analysis. Id. at 772-73.
Therefore, NEPA applies to a project if and only if the agency has discretionary authority to
decide how or whether to act. “Agency discretion presumes that an agency can exercise
‘judgment’ in connection with a particular action.” Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 668 (2007). Agencies exercise discretion when they have “the power or
right to decide or act according to [their] own judgment; freedom of judgment or choice.” Id.
Here, Congress gave the Park Service and the Forest Service actual control and discretion to
exercise their own judgment over bison management, so NEPA requires them to analyze all
direct, indirect, and cumulative impacts of the bison management plan. The Park Service has
employed a cramped view of its own statutory authorities to avoid complying with NEPA. When
passing NEPA, Congress foresaw situations precisely like this. It prohibited any agency from
“utiliz[ing] an excessively narrow construction of its existing statutory authorizations to avoid
compliance.” 115 Cong. Rec. 39703 (1969), quoted approvingly by Flint Ridge Dev. Co. v.
Scenic Rivers Ass’n, 426 U.S. 776, 788 (1976). As shown above, in the Yellowstone
Management Act Amendments, Congress delegated to the Park Service to decide what bison
qualify as “surplus” and to decide what to do with them. That grant of authority makes the whole
bison management plan subject to Park Service discretion, judgment, and control. See Dep’t of
Transp., 541 U.S. at 767-68; Nat’l Ass’n of Home Builders, 551 U.S. at 668.
As a second source of discretionary control, the Park Service has unquestioned authority to
keep Yellowstone bison within Yellowstone. As a third source, the Organic Act gives the Forest
Service authority to manage the hunt on its own lands. See 16 U.S.C. § 551.
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As a fourth source, the Federal Agencies can control bison management with their purse
strings. Between 2002 and 2008, the United States paid $1.9 million of the $2 million operating
expenses for the bison management plan. Ex. M at PDF page 2. That makes it a major federal
action. “[S]ignificant federal funding turns what would otherwise be a local project into a major
federal action” Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979). Generally, when the United
States agencies pay less than ten percent of a program’s cost, it does not qualify as a federal
action. Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1101 (9th Cir. 2007). Here, however, the
United States is paying for 95 % of the bison management plan’s costs. That overwhelming
proportion of federal funds gives the Federal Agencies control of the bison management plan.
See Sierra Club v. U.S. Fish & Wildlife Serv., 235 F. Supp. 2d 1109, 1120 (D. Or. 2002)
(concluding that an elk study qualified as a federal project when the federal money paid for 75 %
of it). Consequently, NEPA requires the Federal Agencies to analyze the entire action as a
federal project. See id.
For each of these four independent reasons, the bison management plan qualifies as a major
federal action. By issuing the 2019 Winter Plan without analyzing all aspects of the decision, the
Federal Agencies violated NEPA’s requirements to analyze every major federal action.
D. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan in a Supplemental, Federal Environmental Analysis.
Even if the Federal Agencies had less jurisdiction and control over the bison management
plan, NEPA still required them to issue a supplemental NEPA analysis to analyze the public
safety impacts of a hunt concentrated on a one-quarter-square-mile area near private property
owners, neighbors, and visitors. The concentrated hunt no longer fits within the range of
alternatives the Federal Agencies analyzed in the IBMP EIS, and its impacts—like killing or
seriously injuring property owners, neighbors, and visitors—exceed the impacts the agencies
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expected. Moreover, even as the hunting drastically intensified, the Federal Agencies never
analyzed any alternative locations to disperse hunting to decrease its impacts.
After an agency makes a decision, NEPA requires the agency to supplement its analysis
under two circumstances. First, NEPA compels agencies to issue a supplemental EIS if an
agency changes the action it described in its decision, and if those changes qualify as
“substantial” and “relevant to environmental concerns.” 40 C.F.R. § 1502.10(c)(i). Second,
NEPA compels a supplemental EIS if new information arises, and if that new information
demonstrates the remaining federal action would affect the quality of the environment “in a
significant manner or to a significant extent not already considered.” Marsh, 490 U.S. at 374; 40
C.F.R. § 1502.9(c)(1)(ii). This situation satisfies both tests.
In their 2000 Record of Decision, the agencies specifically deferred their analysis of hunting
impacts until Montana described the hunting parameters. IBMP ROD 15. In 2004, Montana
Wildlife completed an EA that analyzed hunting. In 2011, the IBMP agencies analyzed whether
expanded hunting fit within the environmental impacts of the 2000 IBMP EIS as part of its
adaptive management program. They concluded that “[t]he analyses contained in the FEIS for
the IBMP are still valid and there is no new information or circumstances that would
substantially change the analysis of impacts relative to the proposed adjustments, as described
below.” 2011 Document 11.
The 2011 Document does not satisfy NEPA or the APA because of its circular reasoning. In
the 2011 Document, the Federal Agencies found that “[t]he impacts of public and treaty hunts on
Yellowstone bison are consistent with Alternative 3 of the [IBMP EIS] and the environmental
assessment completed by [Montana Wildlife].” 2011 Document 5. The Federal Agencies
recognized that some “landowners . . . have human safety . . . concerns.” Id. 10. They resolved
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those concerns by referring back to the IBMP EIS. The IBMP ROD, that made the decision
based on that EIS, however, stated that the agencies planned to analyze the impacts of hunting on
property owners, neighbors, and visitors, based on the hunt that Montana allowed. IBMP ROD
15. To date, the Federal Agencies simply never completed that analysis and never explained why
not. The Federal Agencies violated the APA by failing to provide “a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox
Television, 556 U.S. at 515.
The Federal Agencies will likely argue that their adaptive management approach from the
2000 IBMP ROD allows them to make these changes to the hunting analyzed in the IBMP FEIS.
That argument would misapprehend the function of adaptive management. In many situations,
adaptive management gives agency actions their needed flexibility. “The procedural
requirements of NEPA do not force agencies to make detailed, unchangeable mitigation plans for
long-term, development projects.” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d
497, 517 (D.C. Cir. 2010). Nonetheless, adaptive management does not allow agencies to “defer
decisionmaking about how a resource will be used.” Defs. of Wildlife v. N.C. Dep’t of Transp.,
762 F.3d 374, 386 n.5 (4th Cir. 2014). It does not allow agencies change and intensify their
activity outside the scope of their analysis or in a way that would cause unanalyzed
environmental effects. See id. Here, the agencies used it exactly that way. They intensified the
hunting again and again, so the action no longer fits within the IBMP EIS analysis.
Allowing concentrated, dangerous hunting in Beattie Gulch qualifies as “substantial” change,
“relevant to environmental concerns,” and outside the range of alternatives in the IBMP EIS, so
NEPA compels the Federal Agencies to complete a supplemental EIS to analyze that new action.
See 40 C.F.R. § 1502.10(c)(i).
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Separately, the environmental impacts of concentrated hunting and concentrated bison gut
piles at Beattie Gulch are affecting the quality of the environment “in a significant manner” and
to a significant extent not already considered.” Marsh, 490 U.S. at 374; 40 C.F.R. §
1502.9(c)(1)(ii). The Federal Agencies have never analyzed this new danger to human life in the
2000 IBMP EIS, the 2011 Document, or the 2019 Winter Plan. NEPA requires them to issue a
supplemental NEPA analysis to analyze the risks of concentrated hunting at Beattie Gulch killing
humans and the risks of hundreds of bison gut piles concentrated in one area and spreading
brucellosis.
II. The Balance of the Equities Weighs Heavily in Favor of Stopping the Bison Hunt at Beattie Gulch Until the Parties Can Brief the Merits.
The balance of the equities weighs heavily in favor of stopping the bison hunt at Beattie
Gulch. Neighbors is trying to prevent people from dying. The Federal Agencies, on the other
hand, will suffer no irreparable harm from stopping the bison hunt until the Federal Agencies can
compile their administrative records and the Parties can brief the merits.
A. The Bison Hunt Will Cause Neighbors Irreparable Harm.
If the Court does not stop the bison hunt at Beattie Gulch, irreparable harm will likely result.
The hunt risks death or serious bodily injury to Ms. Lynn or one of her family members. The
hunt also will likely force Ms. Lynn into a precarious financial situation that may compel her to
sell one of her rental cabins on which she had expected to rely for her retirement. The potentially
infectious bison guts left all over Beattie Gulch will threaten to transmit undulant fever to
property owners, neighbors, and visitors. Finally, the hunting will further traumatize Neighbors
by forcing them to continue witnessing disturbing scenes including the shooting of pregnant
bison and calves suffocating in their placentas—right outside their properties. This irreparable
injury weighs heavily in favor of temporarily stopping the bison hunt.
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1. The risk of bullets killing Neighbors members weighs heavily in favor of an injunction.
Concentrated hunting near Neighbors’ properties jeopardizes their lives. This Court has
recognized death as “the ultimate irreparable injury.” Wilson v. Grp. Hospitalization & Med.
Servs., Inc., 791 F. Supp. 309, 314 (D.D.C. 1992) (Greene, J.). In another case, this Court relied
on declarants’ “personal observations over a period of time” and “accounts of their own
experiences” to weigh irreparable injury from imminent risk of death. Al-Joudi v. Bush, 406 F.
Supp. 2d 13, 20 (D.D.C. 2005) (Kessler, J.). The evidence here, that bison hunting in Beattie
Gulch risks lives, demonstrates the same irreparable injury, and with even more force.
Most strikingly, another government agency, Montana Wildlife, who manages the bison hunt
in Beattie Gulch, has concluded that the hunt is no longer “safe.” 2018 Mont. Letter; see also
2017 Mont. Letter. Indeed, rifle bullets can fly up to four miles. Ex. X. For fourteen years. Ms.
Lynn has observed the hunt “only a few hundred yards from [her] land, RV, shed, and [her] two
cabins,” and she has seen increasing numbers of hunters and bullets flying. Lynn Decl. ¶¶ 23, 28.
Ms. Lynn has even heard some hunters shooting after dark, which increases the risk of hunters
shooting something unintentionally. Id. ¶¶ 27. She “fear[s] the bullets whizzing around: for [her]
own personal safety, for the safety of [her] neighbors, and for the safety of [her] friends, family,
and guests.” Id. “During hunting season, staying at [her] own cabins frightens [her] because it
sounds like a war zone.” Id. ¶ 28.
Another neighbor has watched the hunt since 2013. Oliver Decl. ¶ 1. She “worr[ies] about
driving down the road or standing on [her] front porch when wild shots are fired.” Id. She fears
for the children in the neighborhood “rid[ing] their bikes or play outside when the shoot is going
on.” Id. These real-life experiences, that demonstrate the risk of irreparable injury from death or
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serious bodily injury, and they weigh heavily in favor of a temporary restraining order and
injunction.
2. Voluminous, Concentrated Bison Gut Piles that Hunters Leave in Beattie Gulch Create a Looming Threat of Neighbors Contracting Undulant Fever.
The bison gut piles that hunters leave behind risk Neighbors’ health. One neighbor calculated
that hunters left about “30,000 pounds of guts and bison parts . . . in Beattie Gulch alone.” Oliver
Dec. ¶ 7. Dr. Peter Nara, an experienced veterinary immunologist, has concluded that the
concentrated bison hunt at Beattie Gulch creates an “ongoing, unstable, and looming threat” to
human health. Nara Decl. ¶ 2. Dr. Nara served as the Section Chief and a Veterinary Medical
Officer in the Vaccine Resistant Diseases Section of the National Cancer Institute at the National
Institutes of Health. Id. ¶¶ 5-6. He researched brucellosis for the U.S. government, and even
received the Congressional Medal/Order of Merit. Id. ¶¶ 6, 11. In 2005, the Park Service hired
him as part of a national team of hand-picked professionals to study brucellosis transmission
mechanisms in elk and bison in and around Yellowstone. Id. ¶ 11. After reviewing the latest data,
he concluded that “the geographically concentrated wild bison hunt in Beattie Gulch, Montana,
poses an ongoing, unstable, and looming threat to human health and safety for brucellosis-
exposed hunters, employees, property owners, neighbors, and visitors to the Beattie Gulch area.”
Id. ¶ 2, 12.
A bison hunt dispersed over a larger geographic area—or in a different area—would not
generate the same risks. See Summary Report from the [IBMP] Meeting 7 (Aug. 6, 2015)
(“Hunting at the park boundary prevents dispersal in to the rest of the area available for bison
outside the park until hunting concludes.”), Ex. BB. As Dr. Nara explained, the sheer volume of
gut piles in Beattie Gulch, “through a ‘concentration effect’ of biomaterial and the associated
olfactory attractiveness of such material (during its natural decay),” brings “[a]nimal visitors to
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organ piles,” and that “prolong[s] and increase[s] the statistical chances for brucellosis and other
viral and bacterial (tuberculosis) disease transmission to other animals and humans.” Nara Decl.
¶ 17. Every year, raptors and ravens “inevitably pick out some of the rotting offal, land in the
trees on [Ms. Lynn’s] land, and drop some of the toxic carrion.” Lynn Decl. ¶ 32.
In humans, Brucella abortus bacterium causes undulant fever. IBMP EIS xliv. If left
untreated with antibiotics, undulant fever can cause fever, chills, night sweats, body and joint
pain, poor appetite, and weakness. Id. at xliv-xlv; Nara Decl. ¶ 22. It also can inflame brains
(encephalitis), cause lesions on bones and joints, infect the heart’s inner lining (endocarditis),
and cause meningitis; brucellosis kills two percent of people it infects. Nara Decl. ¶ 22. These
looming health risks weigh heavily in favor of an injunction. See Al-Joudi, 406 F. Supp. 2d at 20
(“[C]ourts often find a showing of irreparable harm where the movant’s health is in imminent
danger.”).
3. The Bison Hunt Across the Road from Ms. Lynn’s Driveway Traumatizes Her.
Neighbors also suffer irreparable injury from the invasive, concentrated bison hunting in
their neighborhood. Agency actions can “undeniably” injure a plaintiff who “desire[s] to use or
observe an animal species, even for purely esthetic purposes . . . .” Lujan v. Defs. of Wildlife, 504
U.S. 555, 562-63 (1992); see also City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (“[C]ase
or controversy considerations obviously shade into those determining whether the complaint
states a sound basis for equitable relief . . . .”). The bison slaughter across the road irreparably
injures Neighbors and its members.
Ms. Lynn has taken photography courses at Montana State University, and she feels
“especially honored to be able to photograph [bison] on [her] property.” Lynn Decl. ¶ 5. Instead
of seeing bison at peace in their natural habitat where she can photograph them, the “year-after-
year slaughter has horrified and deeply traumatized [her].” Id. ¶ 29. The hunt irreparably injures
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her desire to photograph bison, in peace, on her land. See Fund for Animals, Inc. v. Clark, 27
F.Supp.2d 8, 14 (D.D.C. 1998) (recognizing irreparable harm when “individual plaintiffs live
near and enjoy the bison . . . enjoy observing, photographing and generally commiserating with
the animals.”); Fund for Animals v. Espy, 814 F.Supp. 142, 151 (D.D.C. 1993).
Ms. Lynn also wants to share her cabins with visitors from around the world who “share with
[her] their cherished memories,” cultures, and ideas. Lynn Decl. ¶¶ 18-19. But “[p]eople come to
see live bison—not dead ones. They do not come to see hunters kill families of bison, young and
old, in front of their eyes.” Id. ¶ 34. Ms. Lynn would still want to come visit Yellowstone even if
she did not possess properties. See id. ¶ 17. Other people who own houses and land nearby make
it feel like its own neighborhood. They go into Yellowstone to take photos, to hike, and to share
meals. Id. ¶ 16. Only stopping the hunt can stop Neighbors’ irreparable injury from seeing the
slaughter, blood on the road, and suffocated fetuses in gut piles strewn across the neighborhood.
4. The Bison Hunt May Cause Ms. Lynn to Sell Her Rental Cabins.
The bison hunt is stopping Ms. Lynn from renting her cabins as winter vacation rentals, so
the annual rental income no longer covers her expenses. Neighbors do not claim Ms. Lynn’s
monetary losses as irreparable harm. Of course, temporary money losses do not normally qualify
as irreparable “because money can usually be recovered from the person to whom it is paid.”
Philip Morris USA, Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia, Circuit Justice, Fifth Circuit)
(citation omitted); Mori v. Int’l. Bhd. of Boilermakers, 454 U.S. 1301, 1303 (1981) (Rehnquist,
Circuit Justice, 9th Cir.) (finding $150,000 loss irreparable). Nonetheless, the annual bison hunt
is causing so much financial stress that Ms. Lynn almost had to sell one rental cabin. Lynn Decl.
¶¶ 48-50. That lost business and lost property right each qualify as irreparable harms. Wis. Gas
Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (“Recoverable monetary loss may constitute
irreparable harm . . . where the loss threatens the very existence of the movant’s business.”);
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Peterson v. D.C. Lottery & Charitable Games Control Bd., No. CIV. A. 94-1643, 1994 WL
413357, at *4 (D.D.C. July 28, 1994) (“It is settled beyond the need for citation . . . that a given
piece of property is considered to be unique, and its loss is always an irreparable injury.”).
The bison hunt prevents Ms. Lynn from renting her cabins as winter vacation rentals from
November through April. Lynn Decl. ¶¶ 39-41. Ms. Lynn rented her cabins fully furnished, and
fully ready-to-occupy during the winter from 2006 through 2013. Id. ¶¶ 38, 42. Those guests
likely enjoyed the only personal car-and-truck winter access to Yellowstone at the Gardiner
entrance. See id. ¶ 43. Ms. Lynn owes a duty of quiet enjoyment to her tenants, so she feels
compelled to tell the potential tenants about the hunt. Id. ¶ 44. That scares most of them away.
Id. ¶ 44. But even when the tenants have assumed the risk of staying there, they have regretted it.
When Ms. Lynn rented the cabin in January 2013 to Tom Frostman and his wife for their
bucket-list “winter in Yellowstone” holiday. Id. ¶ 45. The hunt “spoiled” it. Id. It shocked Mr.
Frostman and his wife so much to see the bullets flying and the bison body parts and blood that it
compelled him to write a letter to the Montana Governor. Id.; id., Ex. A.
More recently, in November 2016 to April 2017, Ms. Lynn rented a cabin to Jort Vanderveen
and Sarah Alexandra Teodorescu, who did not expect the hunt to bother them. Id. ¶ 46. Mr.
Vanderveen had planned to leave early for photography and to come back late; and Ms.
Teodorescu had planned to come and go for work over the winter. Id. One day, Ms. Teodorescu
told Ms. Lynn, Ms. Teodorescu just “stood in the doorway of the cabin and just cried at the
despicable wanton slaughter happening outside her doorway’s view.” Id. Ms. Lynn felt
devastated over having caused that pain. Id.
Despite those experiences, Ms. Lynn continued trying to rent the cabins over the winter to
anyone willing to accept the risk. She advertised them last year, but found no renters, although
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Gardiner citizens “feel desperate for rental housing.” Id. ¶ 41. She tried decreasing the rent, but
still had no success. Id. ¶¶ 41-42. She knows the danger keeps local renters away. Id. ¶ 41.
Renting the cabins as vacation rentals only from May until October, however, no longer covers
the cabins’ annual expenses: booking fees, homeowners’ association fees, utilities, maintenance,
and mortgages. Id. ¶ 36. Ms. Lynn’s bookkeeper warned her of this situation. Id. In past years
when the rent did not cover the expenses, Ms. Lynn had subsidized the rentals with her real-
estate business. Id. ¶ 37. At 76 years old, however, she is struggling to make ends meet because
she has “cut way back on [her] over forty-six years in the real estate industry,” to focus on the
cabin rentals and other opportunities. Id. ¶¶ 4, 50.
As a result of this squeeze, Ms. Lynn almost sold one of her cabins in September 2019. Id. ¶¶
36, 48-50. In August 2019, someone offered to pay cash for Cabin 8. Id. ¶ 48. Ms. Lynn wanted
to leave the cabin to her godson and his wife as part of her estate, because she “know[s] how
much they like visiting Yellowstone, staying at the cabins, [and] fishing on the Yellowstone
River.” Id. ¶ 49. But because Ms. Lynn needed to take care of herself, she started moving
forward. Id. ¶¶ 48-50. Ultimately, the sale fell through. Id. ¶ 50. Ms. Lynn is “doing [her] best to
make ends meet for this winter, but [she] struggle[s] to be able to rob Peter to pay Paul . . . .” Id.
Even if Ms. Lynn could only rent each cabin month-to-month for $1,150 per month from
November to May (instead of renting them as vacation rentals without the hunt), the bison hunt
costs her up to $13,800 every year. See id. ¶¶ 36, 40. That amount could easily tip a small
business into unprofitability, as it is doing here. It risks Ms. Lynn’s ownership of her cabins and
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her rental business. Stopping the winter bison hunt would likely allow her to rent the cabins for
the rest of the winter, and it could save her small business and retirement plans.19
The risk of death or serious bodily injury; the concentrated, gut piles potentially infected with
brucellosis; the aesthetic harms of seeing bison slaughtered; and the loss of Ms. Lynn’s cabin,
together weigh heavily in favor of temporarily stopping the bison hunt in Beattie Gulch, while
the agencies compile the administrative records and the Parties brief this case.
B. The Federal Agencies Will Suffer No Irreparable Injury from Stopping the Hunt.
Against Neighbors’ weighty interests, the Federal Agencies can demonstrate little, if any,
irreparable harm in temporarily stopping the hunt. Any harm they suffer will have resulted from
their own poor planning. If the Federal Agencies had complied with NEPA and analyzed the
environmental impacts of the increasingly concentrated bison hunt in Beattie Gulch, they would
have generated alternatives. See 40 C.F.R. § 1502.14. But the Federal Agencies never completed
that analysis. Congress enacted NEPA for reasons just like this, and the Federal Agencies’ legal
violations undermine their efforts to demonstrate any irreparable harm.
NEPA’s requirements weigh in favor of this Court choosing a temporary remedy from
among the alternatives the Federal Agencies have already analyzed in the IBMP EIS. See
Conservation Nw. v. Sherman, 715 F.3d 1181, 1188 (9th Cir. 2013) (overturning a district court
for entering a permanent consent decree that allowed an agency to make a land management
decision “without having followed statutorily required procedures”). The Forest Service could
shut down Beattie Gulch to hunting, as it has done in parts of that area. Alternately, the Park
19 Ms. Lynn has separately filed an inverse condemnation case in the United States Court of Federal Claims for just compensation under the Fifth Amendment. She could obtain a legal remedy there. See Hurley v. Kincaid, 285 U.S. 95, 104-105 (1932). That remedy, however, would extend only to the monetary element of irreparable injury. Remedies at law would not cure them, so only this Court’s equitable authority can. See Marbury v. Madison, 5 U.S. 137, 147 (1803) (“every right, when withheld, must have a remedy, and every injury its proper redress.”).
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Service could allow some bison outside of Yellowstone, without allowing hunting, as the IBMP
ROD initially approved in 2000. See IBMP ROD 53. Neither step would undermine either
agency’s missions.
C. The Public Interest Weighs in Favor of Stopping the Bison Hunt in Beattie Gulch.
Instead of undermining the agencies’ missions, Congress issued clear policy directions, and
they weigh in favor of temporarily stopping the bison hunt. Congress assigned all agencies the
duty “to foster and promote the general welfare, to create and maintain conditions under which
man and nature can exist in productive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Americans.” 42 U.S.C. § 4331. Courts cannot,
of course, “override Congress’ policy choice, articulated in a statute,” and they cannot exercise
their “discretion” to “reject the balance that Congress has struck in a statute.” United States v.
Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497 (2001). Here, both alternatives, analyzed
in the 2000 IBMP EIS that stop the hunting, advance Congress’s policy goals.
The Federal Agencies never considered public safety of the concentrated bison hunt at
Beattie Gulch, and that weighs heavily in favor of stopping it. Aside from dangers to the
neighbors, Montana Wildlife also found dangers to the hunters, themselves. A stray bullet could
hit a bystander or family member. Property owners, neighbors, or visitors could die in their
living rooms from any single hunter’s mistake or failure of judgment.
Separately, just as brucellosis in the bison gut piles presents a looming threat to Neighbors
and its members, it also threatens hunters, landowners, federal employees, state employees, and
guests. See Nara Decl. ¶ 15-23. Experience demonstrates that grave risk. One spring about four
or five years ago, a young woman in her 20s, heedless of the risks to her health, decided to make
purses out of raw bison guts she found in Beattie Gulch. Lynn Decl. ¶ 35. This story exemplifies
one of the unforeseeable activities that make the gut piles an “ongoing, understudied,
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uncontrolled threat to humans . . . occupying [Beattie Gulch] for whatever reasons . . . .” See
Nara Decl. ¶ 21. The public interest weighs in favor of averting that risk.
To be clear, allowing hunting for recreation carries no weight in favor of the public interest.
“Restrictions on human intervention are not usually irreparable in the sense required for
injunctive relief.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1125 (9th Cir. 2002), abrogated
on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); Am.
Motorcyclist Ass’n v. Watt, 714 F.2d 962, 967 (9th Cir. 1983) (“reduced recreation and
development opportunities . . . pos[e] no danger of irreparable injury to the environment or to the
public interest.”). Instead, the public interest weighs heavily in favor of temporarily stopping the
bison hunt while the agencies compile their administrative records and the Parties brief the case.
See 42 U.S.C. § 4331(2) (directing agencies to “assure for all Americans safe, healthful,
productive, and esthetically and culturally pleasing surroundings”).
CONCLUSION
Neighbors has demonstrated it is likely to succeed on the merits of its Yellowstone
Management Act, Forest Service Organic Act, and NEPA claims. It has demonstrated that its
members will likely suffer irreparable injury without an injunction, and it has shown that the
Park Service and the Forest Service will not suffer irreparable injury from an injunction. Public
health and safety weigh in favor of stopping the concentrated bison hunt. For these reasons, the
balance of the equities weighs heavily in favor of stopping it while the agencies compile their
administrative records and the agencies brief this case on the merits.
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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. 46
Dated October 21, 2019,
MATTHEW D. THURLOW Baker & Hostetler LLP 1050 Connecticut Avenue, NW Washington, DC 20036 (202) 861-1681 [email protected] _____/s/ Jared S. Pettinato_________________ JARED S. PETTINATO, DC Bar No. 496901 Jared Pettinato Law Offices 3416 13th St. NW, # 1 Washington, DC 20010 (406) 314-3247 [email protected] Attorneys for Plaintiffs Of Counsel: ZOE STEINBERG Baker & Hostetler LLP 11601 Wilshire Blvd. Los Angeles, CA 90025 [email protected]
Case 1:19-cv-00128-SPW Document 4-1 Filed 10/23/19 Page 51 of 51