ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Animal and Plant Health Inspection Service, an agency of the U.S. Department of Agriculture; United States Forest Service, an agency of the U.S. Department of Agriculture; Leslie Weldon, in her official capacity as Regional Forester of Region One of the U.S. Forest Service; United States Department Of Interior; United States Fish and Wildlife Service, an agency of the U.S. Department of Interior; United States National Park Service, an agency of the U.S. Department of Interior; Christian Mackay, in his official capacity as Executive Director of the State of Montana Department of Livestock, Defendants-Appellees, and Bill Myers, Intervenor-Defendant-Appellee.
No. 13-35253.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 8, 2013. Filed Nov. 20, 2014.
772 F.3d 592
Petition GRANTED and REMANDED.
ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Animal and Plant Health Inspection Service, an agency of the U.S. Department of Agriculture; United States Forest Service, an agency of the U.S. Department of Agriculture; Leslie Weldon, in her official capacity as Regional Forester of Region One of the U.S. Forest Service; United States Department Of Interior; United States Fish and Wildlife Service, an agency of the U.S. Department of Interior; United States National Park Service, an agency of the U.S. Department of Interior; Christian Mackay, in his official capacity as Executive Director of the State of Montana Department of Livestock, Defendants-Appellees, and Bill Myers, Intervenor-Defendant-Appellee.
No. 13-35253.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 8, 2013.
Filed Nov. 20, 2014.
Thekla Hansen-Young (argued), Trial Attorney, Robert G. Dreher, Acting Assistant Attorney General, Andrew C. Mergen, Trial Attorney, Robert J. Lundman, Trial Attorney; Environment & Natural Resources Division, United States Department of Justice; Washington, D.C., for Defendants-Appellees United States Department of Agriculture, United States Animal and Plant Health Inspection service, Leslie Weldon in her official capacity as Regional Forester of Region One of the United States Forest Service, United States Department of the Interior, United States Fish and Wildlife Service, and United States National Park Service.
Robert Stutz, Assistant Attorney General, Agency Legal Service Bureau, Montana Department of Justice; Helena, MT, for Defendants-Appellees Montana Department of Livestock and Christian Mackay.
John E. Bloomquist and Rachel A. Kinkie, Doney Crowley Payne Bloomquist, P.C., Helena, MT, for Intervenor-Defendant-Appellee Bill Myers.
Before: MARY M. SCHROEDER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
OPINION
PAEZ, Circuit Judge:
The grizzly bear is one of this country‘s most majestic creatures. Originally numerous throughout the American west, including California and Texas, grizzly bear populations were decimated in the nineteenth and twentieth centuries through a combination of commercial trapping, unregulated hunting and rapid habitat deterioration. Between 1800 and 1975, grizzly bear populations fell from estimates of over 50,000 to less than 1,000.1 Today, they are present
One sub-population of grizzly bear, central to the present case, is the Yellowstone grizzly bear, which is protected under the Endangered Species Act and monitored as part of the Yellowstone Grizzly Bear Recovery Zone. The Yellowstone grizzly bear shares its habitat with a variety of other species, including the Yellowstone bison, which migrates seasonally inside and outside of Yellowstone National Park. Because the Yellowstone bison carries brucellosis, a disease deadly to cattle, their migration patterns are controlled through carefully selected “hazing, or herding,” methods. Although these hazing methods effectively limit encounters between Yellowstone bison and cattle, environmental groups have become increasingly concerned about the possibility for detrimental consequences to the precarious maintenance of the Yellowstone grizzly bear population. It is these concerns that are at issue in this case.
Alliance for the Wild Rockies (“Alliance“) challenges the decision of the United States Forest Service (“Forest Service“), United States National Park Service (“Park Service“), United States Department of Agriculture (“USDA“), United States Animal and Plant Health Inspection Service (“Inspection Service“), United States Department of the Interior (“Interior“), and United States Fish and Wildlife Service (“FWS“) (collectively, “federal defendants“), as well as the Montana Department of Livestock (“MDOL“), to permit recurring, low-altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone. Alliance alleges that these helicopter flights may harass Yellowstone grizzly bears and constitute an unpermitted “take,” as defined by statute. Alliance alleges that the federal defendants and MDOL have violated the
Before turning to the merits of Alliance‘s claims, we must first address the district court‘s ruling that Alliance lacked Article III standing to pursue its claims and that Alliance failed to properly give notice of its ESA claims as required by
We affirm in part and reverse in part.
I. Background
The Greater Yellowstone Area spans twenty million acres of land across parts of Idaho, Montana and Wyoming, including Yellowstone National Park. It is inhabited by wild bison and Yellowstone grizzly bears, both of which freely migrate in and out of Yellowstone National Park. Some wild bison in the Greater Yellowstone Area have a contagious bacterial disease called brucellosis that can be transmitted to cattle that graze in the region. To minimize disease transfer between bison and cattle, the bison are managed, in part, according to a 2000 interagency document entitled the Interagency Bison Management Plan (“Management Plan“). The Management Plan aims to “maintain a wild, free ranging population of bison and address the risk of
The Park Service, Forest Service, Inspection Service, Interior and USDA all signed and authorized the Record of Decision implementing the Management Plan. The State of Montana also signed a separate Record of Decision committing to implementation of the Management Plan.
A. Yellowstone Grizzly Bears
The Yellowstone grizzly bear is a sub-population of grizzly bear, which is listed as a threatened species under the ESA.
In compliance with Section 7 of the ESA,
Following the Management Plan‘s approval in 2000, helicopter hazing under the plan was gradually extended beyond the original target of a mid-May completion date. In 2010, hazing operations were documented through the end of July, and in 2011, they continued through June. Additionally, both the Forest Service and independent observers reported the presence of Yellowstone grizzly bears prior to and during hazing operations. In 2012, the Park Service acknowledged these changes and announced that:
Since the [FWS] issued its letter of concurrence in 2000, additional information regarding bison and grizzly bears has become available. Through adaptive management adjustments to the Interagency Bison Management Plan, the hazing of bison now occurs more often from December through June than in the past. The hazing of bison during spring and early summer may affect threatened grizzly bears in a manner or to an extent not considered in the 2000 Biological Assessment.
B. District Court Proceedings
On May 11, 2011, Alliance sent a “60-day Notice of Intent to Sue Under the [ESA]” to the Forest Service, Park Service, MDOL, USDA and Interior. The notice alleged that the federal defendants violated the ESA by failing “to apply the best available science and new information and reinitiate Section 7 ESA consultation,” and failing “to comply with ESA Section 9 by allowing/causing past and ongoing unpermitted take of threatened Yellowstone grizzly bears from harassment and harm related to helicopter hazing operations....”
Without waiting for the 60-day notice period to expire, on May 18, 2011, Alliance filed a complaint under the Administrative Procedure Act (“APA“),
On July 14, 2011, Alliance filed an amended complaint alleging claims under Section 7 and Section 9 of the ESA. In Fall 2012, the parties filed cross-motions for summary judgment and, while the motions were pending, the federal defendants notified the district court that, as noted above, they had reinitiated, and completed, Section 7 consultation on the impact of the Management Plan on Yellowstone grizzly bears.
The district court granted the federal defendants’ motion for summary judgment in its entirety. The court dismissed Alliance‘s claims against the federal defendants for lack of Article III standing, holding that the federal defendants did not control, authorize or currently fund the helicopter hazing operations. The court further concluded that Alliance failed to comply with the ESA‘s 60-day notice requirement and, therefore, jurisdiction over Alliance‘s ESA claims did not exist. Finally, the court held that the Section 7 claim was moot because the federal defendants had voluntarily reinitiated and completed consultation on the impacts of helicopter hazing under the Management Plan on Yellowstone grizzly bears.
The district court also addressed the merits of Alliance‘s claims other than its Section 7 claim. The district court granted summary judgment to the federal defendants on Alliance‘s Section 9 claim on the ground that “there is simply no evidence in this record that [Montana‘s] helicopter hazing constitutes a ‘take’ of the Yellowstone grizzly bear within the meaning of ESA Section 9.” The district court also granted summary judgment to the
Alliance timely appealed.3
II. Standing
As an initial matter, we first address whether Alliance has standing to raise its ESA and NEPA claims. To establish Article III standing, Alliance must show (1) an injury in fact, which is an injury that is concrete and particularized, and actual or imminent; (2) a causal connection between the injury and the conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Whether there is an injury in fact is not contested here. Alliance has alleged, through extensive declarations, that its members have vested “esthetic, recreational, scientific, vocational, and educational interests in the threatened Yellowstone grizzly bears and their occupied habit,” and that these interests are threatened by the federal defendants’ alleged failure to comply with the ESA and NEPA.
Instead, the federal defendants argue that because they did not authorize, control, or currently fund the helicopter hazing operations, “no federal action underlies the complained-of activity.” They contend they therefore did not cause Alliance‘s injury in fact and have no ability to redress the alleged harm. Accordingly, they argue, Alliance cannot establish the standing requirements of causation and redressability.
Alliance‘s response is that the Management Plan was developed and approved by the federal defendants and that the helicopter hazing program was in fact “authorized, funded, or carried out, in whole or in part” by the federal defendants. As Alliance explains it, the “harm is caused by the [federal defendants‘] failure to comply with the ESA [and NEPA]; and the remedy is for the Court to order reconsultation and promulgation of an incidental take permit for the [Management Plan].” We hold that the district court erred in dismissing Alliance‘s ESA and NEPA claims for lack of standing.
A. ESA
The ESA requires all federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”
As adoption of the Management Plan was an agency action, the federal defendants are required to abide by certain procedural and substantive requirements imposed under the ESA. See
Alliance argues that the federal defendants have violated Section 7 of the ESA because “Defendants have failed to provide a Biological Opinion and/or Incidental Take Statement for the adverse impact and take of grizzly bears from repeated low-altitude helicopter flights ...,” and have “failed to comply with their ongoing obligation to reinitiate ESA consultation for the 2000 management plan....” Similarly, Alliance alleges that the federal defendants and MDOL have violated Section 9 because “Defendants are allowing and causing past and ongoing unpermitted take of threatened Yellowstone grizzly bears” and “do not have an Incidental Take Statement for this take.”
There is a direct causal connection between these claims of procedural injury and the federal defendants’ actions concerning the Management Plan. The federal defendants worked jointly with MDOL to develop the Management Plan, and ultimately authorized and approved the Management Plan after adopting a lengthy Record of Decision. The Forest Service and Park Service then engaged in the development, and completion, of consultation under Section 7 for the Management Plan and retain ongoing responsibility to reinitiate consultation as required. See
Further, Alliance‘s ESA claims are redressable by the federal defendants. Indeed, they have now twice engaged in the precise action that Alliance seeks, consultation under Section 7 of the ESA. Moreover, we need not determine whether the federal defendants’ reinitiation of consultation under Section 7 and issuance of an Incidental Take Statement would ultimately redress Alliance‘s interest in the protection of Yellowstone grizzly bears. It is enough that their “procedural right [], if exercised, could protect [their] concrete interests.” Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (en banc) (emphasis in original, internal quotation marks omitted). Accordingly, Alliance‘s ESA claims are redressable by the federal defendants, and Alliance has standing to raise these claims.
B. NEPA
As with the ESA claims, the federal defendants argue that Alliance lacks Article III standing to pursue its NEPA claim because it cannot show that a federal action underlies the NEPA claim sufficient to establish causation and redressability. Because the Management Plan is a federal action and Alliance‘s NEPA claim is a procedural one, we reverse and hold that
As previously discussed, under Article III, Alliance must show that it has suffered an injury in fact that “is fairly traceable” to the federal action of the defendant and “will be redressed by a favorable decision.” See Friends of the Earth v. Laidlaw Envt‘l Servs., 528 U.S. 167, 180-81 (2000). In addition to these constitutional requirements, prudential standing under NEPA also requires a showing that the alleged injury “falls within the ‘zone of interests’ that NEPA was designed to protect.” Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001). The federal defendants do not dispute that Alliance has established an injury in fact and prudential standing. Accordingly, we consider only whether the necessary causality and redressability exists.
Under NEPA, federal agencies are required to complete an EIS as a component of any “major Federal actions significantly affecting the quality of the human environment.”
Alliance‘s claim under NEPA arises from the Management Plan itself. Alliance challenges the federal defendants’ “failure to conduct a NEPA analysis to assess the direct, indirect and cumulative environmental effects on threatened Yellowstone grizzly bears of annual recurring low-altitude helicopter flights over occupied grizzly bear habitat.” As the flights were authorized by the Management Plan, this injury is “fairly traceable” to the federal defendants’ actions in approving the
Management Plan. When viewed in this manner, there can be little doubt that Alliance has alleged a major federal action for purposes of NEPA. See Cold Mountain v. Garber, 375 F.3d 884, 887 n. 2, 893-94 (9th Cir. 2004) (finding the predecessor to the Management Plan to be a major federal action for purposes of NEPA analysis). The fact that the federal defendants have previously completed a final EIS for the Management Plan belies their claim that there is no federal action. Were the Management Plan not a “major Federal action[] significantly affecting the quality of the human environment,” the federal defendants would never have been required to complete an initial final EIS.
Moreover, as with Alliance‘s ESA claims, the procedural injury Alliance alleges under NEPA is also redressable by the federal defendants. Here, Alliance seeks supplementation of the EIS to consider the impacts of current helicopter hazing operations on Yellowstone grizzly bears, a procedural right which could protect its alleged substantive interests. See Natural Res. Def. Council, 749 F.3d at 783. We therefore hold that Alliance has standing to pursue its NEPA claim.
III. Mootness and Section 7 of the ESA
Alliance argues that Section 7(a)(2) of the ESA,
Section 7(a)(2) of the ESA requires federal agencies to ensure, in consultation with the appropriate wildlife agency, that any action authorized or carried out by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of designated critical habitat.
The Park Service and FWS conducted a Biological Evaluation in 2000 analyzing the potential effects of the Management Plan on Yellowstone grizzly bears and determined that the Management Plan was “not likely to adversely affect the grizzly bear.” In September 2012, the Park Service reinitiated consultation, focusing on the Management Plan‘s expansion of helicopter hazing operations to the spring and early summer. In this new Biological Evaluation, it concluded that bison hazing operations “may affect, but are not likely to adversely affect listed grizzly bears.” The new Biological Evaluation was then forwarded to the FWS, which issued a reconcurrence stating “[w]e have reviewed your November 1 biological evaluation and concur with your determination that hazing operations conducted under the Management Plan may affect, but are not likely to adversely affect grizzly bears.” In conducting a second consultation and Biological Evaluation on the impact of the Management Plan on Yellowstone grizzly bears, and obtaining a second concurrence from the FWS, the federal defendants completed the reinitiation of consultation required by the ESA. See
IV. The ESA Claims
A. The 60-Day Notice Requirement
Pursuant to Section 11(g)(1)(A) of the ESA, citizen suits are permitted to enjoin persons who are “alleged to be in violation” of the ESA or the applicable regulations.
The question here is whether Alliance complied with the ESA‘s 60-day notice requirement when it gave notice of its intent to sue under the ESA but then filed a complaint alleging non-ESA claims, later amending the complaint to add ESA claims after the 60-day notice period had expired.5 We have not previously addressed that precise issue. In light of the plain text of the statute and the persuasive reasoning of other courts that have considered similar notice requirements, we conclude that Alliance properly commenced its ESA suit under
“[T]he starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Section 11(g)(1)(A) states:
(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf—
(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof;
[n]o action may be commenced under subparagraph (1)(A) of this section—
(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation....
The plain language of
The text of
Moreover, the legislative purpose of the notice requirement similarly fails to support the federal defendants’ arguments. The legislative history of the first citizen suit statute, Section 304 of the Clean Air Act Amendments of 1970, “indicates an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.” Hallstrom, 493 U.S. at 29 (citing 116 Cong. Rec. 32927 (1970)). In Hallstrom, the Supreme Court emphasized that the notice requirement serves this goal by “allow[ing] Government agencies to take responsibility for enforcing environmental regulations,” and “giv[ing] the alleged violator an opportunity to bring itself into complete compliance with the Act.” Id. at 29 (internal quotation marks omitted). So too, here: notice of an alleged ESA violation provides federal agencies with an opportunity to “take responsibility” for enforcing the ESA and to correct any violation short of litigation. However, there is nothing in the ESA that remotely suggests that a potential ESA plaintiff must refrain from commencing suit to pursue other non-ESA claims before the 60-day notice period expires.
Indeed, despite incorporating notice requirements into numerous environmental statutes, see Hallstrom, 493 U.S. at 23 n. 1, Congress has thus far declined to include such a pre-filing requirement in NEPA and NFMA. Were we to read
Thus, although Alliance gave notice of its intent to file suit under
We are not the only court to read a provision similar to
Although we acknowledge the beneficial purposes of the 60-day notice period, these purposes do not outweigh Alliance‘s right to proceed on its other claims without any waiting period. Had Alliance been unable to file its original complaint while it waited for the notice period to expire, it would have been precluded from seeking a temporary restraining order and preliminary injunction on its NEPA claims until after the ESA notice period had expired. Such a delay could impose significant burdens on plaintiffs when confronted with the need to seek immediate relief. See Zands, 779 F.Supp. at 1261. Accordingly, we hold that the district court erred in concluding that Alliance could not pursue its ESA claims for failure to comply with
B. Section 9
Alliance also alleges that the federal defendants and MDOL have violated Section 9 of the ESA. Alliance contends that the Management Plan‘s helicopter hazing program has so harassed Yellowstone grizzly bears as to constitute a “take” under Section 9, and that the district court therefore erred in granting the federal defendants
Section 9 of the ESA prohibits the taking of an endangered or threatened species.
Viewing this record in the light most favorable to Alliance, we hold that the district court did not err in granting summary judgment to the federal defendants on the Section 9 claim and dismissing the claim against MDOL.
Alliance alleges that “[h]elicopter hazing operations cause take because they displace grizzly bears, including female bears, from critical spring and summer feeding activities.” Included in this record is a video Alliance obtained of a “bison-hazing helicopter operation” which purportedly depicts a “grizzly bear running away from the helicopter” on May 12, 2010. The videographer, however, does not state and the district court could not conclude that “the bear was engaged in any feeding activity, whether before, during, or after its contact with the helicopter.”
Alliance also contends that current scientific evidence supports a finding that the flight response of grizzly bears in response to helicopters is not a normal physiological response to being startled, but is indicative of significant disruption to normal behavioral patterns. In support of this argument, Alliance has submitted a report prepared by the Park Service concerning the effects of overflights on wildlife in the parks, including grizzly bears, and the Forest Service‘s own “Guide to Effects Analysis of Helicopter Use in Grizzly Bear Habitat,” which acknowledges the negative effects of helicopters on grizzly bears. Yet the record before the district court at the time of summary judgment lacks evidence to show that MDOL‘s helicopter hazing is of the type that the report and Guide link to significant disruption of grizzly bear behavioral patterns. The federal defendants acknowledge that the hazing can impact grizzly bears, but assert that hazing operations “infrequently occurred in the presence of grizzly bears” and “would cease if there was evidence of grizzlies being active in the area.” Although there was evidence in the summary judgment record that helicopters had flown over bears, there was no evidence that helicopters had continued hazing operations in areas with signs of grizzly bear presence in violation of the instructions to stop.
Accordingly, we affirm the district court‘s conclusion that on this record Alliance has failed to raise a triable issue as to whether a take has occurred or is likely to occur under Section 9 of the ESA.
V. NEPA
In addition to its ESA claims, Alliance also seeks reversal of the district court‘s grant of summary judgment to the federal defendants on its NEPA and NFMA claims.9
In support of its claim that the federal defendants are required to prepare a supplemental EIS, Alliance alleges three “significant new circumstances or information” pertaining to the Management Plan. First, while the final EIS for the Management Plan indicated that hazing impacts on Yellowstone grizzly bears would end in April or May, helicopter hazing now extends into June and July. Second, although the final EIS contemplated that Yellowstone grizzly bears would be denning, or at higher elevations, during hazing operations, “most hazing now occurs after denning and den emergence, and grizzly bears are consistently present in the lower elevation areas where hazing occurs during most hazing operations.” Third, the final EIS indicated that hazing would be stopped if there was evidence of Yellowstone grizzly bear activity in the hazing operation area, but hazing operations remain ongoing despite such actions. Because the federal defendants’ considered these issues during the initial final EIS process, we affirm the district court‘s grant of summary judgment to the federal defendants.10
As the district court noted, the final EIS contemplated that helicopter hazing might occur in varying time frames as required to successfully migrate bison back to Yellowstone National Park. Thus, the approval of the final EIS was not tied to the complete absence of Yellowstone grizzly bears from the hazing region. Rather, the final EIS acknowledged that “the average emergence date for bears is in March ...,” and, accordingly, some overlap between hazing operations and Yellowstone grizzly bear presence might be inevitable.
Although Alliance argues that the federal defendants “have essentially already conceded this issue,” by engaging in reconsultation under Section 7, these two procedural requirements are distinct. Reconsultation under Section 7 does not imply that “significant new circumstances or information” have arisen which would also require analysis under NEPA.
Accordingly, we hold that the federal defendants considered the possibility of extended helicopter hazing and encounters with Yellowstone grizzly bears in the initial EIS and, thus, the information presented by Alliance does not establish a substantial change in the proposed action nor significant new circumstances or information requiring the federal defendants to supplement the EIS. See
VI. Conclusion
We reverse the district court‘s holding that Alliance lacked standing to bring its ESA and NEPA claims. We also reverse the district court‘s ruling that Alliance failed to comply with the ESA citizen suit 60-day notice provision. We affirm, however, the dismissal of all of Alliance‘s ESA claims against Inspection Service and FWS as they were not included in the 60-day notice on which Alliance relies. We affirm the district court‘s grant of summary judgment to the federal defendants and grant of dismissal to MDOL on Alliance‘s ESA Section 7 claim as it is moot. We also affirm the district court‘s grant of summary judgment to the federal defendants and grant of dismissal to MDOL on Alliance‘s Section 9 claim, as no genuine issues of material fact exist in this record concerning whether a take of a Yellowstone grizzly bear has occurred or is likely to occur. Finally, we affirm the grant of summary judgment to the federal defendants on the NEPA and NFMA claims.
AFFIRMED IN PART AND REVERSED IN PART.
The parties shall bear their own costs on appeal.