Alliance for Wild Rockies v. United States Department of Agriculture
2014 U.S. App. LEXIS 21949
| 9th Cir. | 2014Background
- The Interagency Bison Management Plan (2000) authorizes hazing (including low-altitude helicopter flights) to move brucellosis‑carrying bison out of Montana and back into Yellowstone; federal agencies (Park Service, Forest Service, Inspection Service, FWS, USDA, Interior) and Montana executed Records of Decision implementing the Plan.
- The Plan’s 2000 Final EIS and Biological Evaluation concluded hazing would be short‑term and "not likely to adversely affect" Yellowstone grizzly bears because most hazing would occur while bears were denning; agencies agreed to stop hazing if bear activity was detected.
- Over time helicopter hazing extended later into spring and summer (documented through June–July), and observers reported helicopter flights in areas and times when grizzly bears were active, prompting the Park Service to reinitiate ESA Section 7 consultation in 2012.
- Alliance for the Wild Rockies sued (original complaint raised NEPA and NFMA claims; after a 60‑day ESA notice it amended to add ESA Sections 7 and 9 claims) challenging agencies’ failure to reinitiate consultation and alleging unlawful "take" (harassment) under ESA § 9 from helicopter hazing.
- The district court granted summary judgment to defendants, holding Alliance lacked Article III standing, failed to comply with the ESA 60‑day notice rule, and that the Section 7 claim was moot (because reconsultation had been completed); it also granted summary judgment to defendants on ESA § 9, NEPA, and NFMA claims.
- On appeal the Ninth Circuit reversed the standing and notice rulings, held the Section 7 claim moot (because agencies reinitiated and completed consultation), and affirmed summary judgment against Alliance on ESA § 9, NEPA, and NFMA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for ESA claims | Alliance: Management Plan is federal "action" that authorizes hazing and causes procedural ESA injury; relief (reconsultation/incidental take statement) is redressable by agencies | Defendants: They do not authorize/control/fund helicopter hazing; no federal action causes the injury; cannot redress by court order | Court: Reversed district court — Management Plan and agency responsibilities suffice to establish causation and redressability; Alliance has standing for ESA claims |
| Article III standing for NEPA claim | Alliance: NEPA injury arises from the Management Plan authorizing flights; EIS supplementation could protect interests | Defendants: Lack of direct involvement in hazing means no federal action | Court: Reversed — Management Plan is a major federal action; procedural NEPA injury is fairly traceable and redressable; Alliance has standing |
| ESA 60‑day notice (citizen suit timeliness) | Alliance: Filed initial complaint (non‑ESA claims) during notice period and timely added ESA claims by amended complaint after 60 days — complies with § 1540(g)(2)(A)(i) | Defendants: The 60‑day notice creates a litigation‑free window; filing any complaint before expiry circumvents notice requirement | Held: Reversed district court — filing non‑ESA claims before 60 days does not bar later amendment; commencement of ESA action is measured by amended complaint filed after notice period expired |
| Mootness of ESA § 7 claim | Alliance: Agencies must reinitiate consultation due to changed circumstances (extended hazing, overlap with bear activity) | Defendants: They reinitiated and completed Section 7 consultation in 2012, rendering the claim moot | Held: Affirmed — reinitiation and completion of consultation provided the precise relief sought; Section 7 claim is moot |
| ESA § 9 (take via harassment) | Alliance: Repeated helicopter hazing displaces bears and disrupts feeding/denning — constitutes "take" (harass/harm) | Defendants: Record lacks evidence that hazing continued despite signs of bears or that flights caused significant disruption; no proof of take | Held: Affirmed — no genuine dispute of material fact that a take occurred or is likely; summary judgment for defendants |
| NEPA supplemental EIS requirement | Alliance: Significant new circumstances (extended hazing into June/July; bears present during hazing; alleged continued hazing despite bear signs) require a supplemental EIS | Defendants: Final EIS anticipated possible overlap and analyzed impacts; 2012 Biological Evaluation did not reveal information requiring supplementation | Held: Affirmed — agencies adequately considered the issues in the original EIS and the new information did not trigger mandatory supplementation |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for federal courts)
- Hallstrom v. Tillamook County, 493 U.S. 20 (interpretation of 60‑day notice as condition precedent)
- Friends of the Earth v. Laidlaw Envt'l Servs., 528 U.S. 167 (traceability and redressability for environmental plaintiffs)
- Lane County Audubon Soc'y v. Jamison, 958 F.2d 290 (federal management plans as agency actions under ESA)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (broad definition of "action" under ESA)
- Natural Resources Defense Council v. Jewell, 749 F.3d 776 (procedural rights can protect concrete interests)
- Cold Mountain v. Garber, 375 F.3d 884 (treatment of management plans as major federal actions for NEPA)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA's "hard look" requirement)
- Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (NEPA procedural review standard)
- Marbled Murrelet v. Babbitt, 83 F.3d 1060 (definition of "harass" under ESA regulations)
- Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (past, current, or imminent threats can constitute a take)