Alliance for the Wild Rockies v. USDA, No. 13-35253 (9th Cir. 2014)
Annotate this CaseAlliance filed suit challenging the decision of the federal defendants, as well as MDOL, to permit recurring, low-altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone. Alliance alleged that the federal defendants and MDOL have violated the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. 1600 et seq., because they have failed to undertake the proper procedures for reevaluating the effect of helicopter hazing on Yellowstone grizzly bears and have not issued an incidental take permit for the alleged harassment of Yellowstone grizzly bears. The court reversed the district court's holding that Alliance lacked standing to bring its ESA and NEPA claims; reversed the district court's ruling that Alliance failed to comply with the ESA citizen suit 60-day notice provision; affirmed 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; affirmed the district court's grant of summary judgment to the federal defendants and granted dismissal to MDOL on Alliance's ESA Section 7 claim as it is moot; affirmed the district court's grant of summary judgment to the federal defendants and granted dismissal to MDOL on Alliance's Section 9 claim where no genuine issues of material fact exist in the record concerning whether a take of a Yellowstone grizzly bear has occurred or is likely to occur; and affirmed the grant of summary judgment to the federal defendants on the NEPA and NFMA claims.
Court Description: Environmental Law / Standing / Mootness. The panel affirmed in part and reversed in part the district court’s judgment in favor of federal and Montana state agencies and officials in an action brought by Alliance for the Wild Rockies, challenging the decision to permit recurring, low altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone. To minimize disease transfer between wild bison and cattle in the Greater Yellowstone Area, the bison are managed, in part, according to an Interagency Bison Management Plan which includes using hazing operations to move the bison. The Yellowstone grizzly bear also inhabits the same area, and is listed as a threatened species under the Endangered Species Act. Under Section 7 of the ESA, the National Park Service prepared biological evaluations for the management plan which were approved by the United States Fish and Wildlife Service, and concluded that the helicopter hazing operations would not adversely affect the Yellowstone grizzly. Section 9 of the ESA prohibits the “taking” – which can include harassing – of an endangered or threatened species. The panel reversed the district court’s holding that Alliance lacked standing to bring its ESA and National Environmental Policy Act claims. The panel also reversed the district court’s ruling that Alliance failed to comply with the ESA citizen suit 60-day notice provision. The panel affirmed the dismissal of all of Alliance’s ESA claims against the United States Animal and Plant Health Inspection Service and Fish and Wildlife Service because they were not included in the 60-day notice on which Alliance relied. The panel held that Alliance’s ESA Section 7 claim was moot because the federal defendants had already completed a second biological evaluation consultation addressing the impact of helicopter hazing on the Yellowstone grizzly bears, and affirmed the district court’s grant of summary judgment to the federal defendants and grant of dismissal to Montana on the claim. The panel also affirmed the district court’s grant of summary judgment to the federal defendants and grant of dismissal to Montana on Alliance’s ESA Section 9 claim because no genuine issues of material fact existed in the record concerning whether a take of a Yellowstone grizzly bear had occurred or was likely to occur. Finally, the panel affirmed the grant of summary judgment to the federal defendants on the NEPA and National Forest Management Act claims.
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