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Alliance for the Wild Rockies v. United States Department of Agriculture

ELR Citation: 44 ELR 20246
Nos. 13-35253, (9th Cir., 11/20/2014)

The Ninth Circuit dismissed an environmental group's ESA and NEPA claims against FWS, the National Park Service (NPS), and the state of Montana in a case concerning the "helicopter hazing" of bison in Yellowstone National Park. 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 low altitude helicopter flights to haze the bison. Pursuant to ESA §7, the NPS prepared biological evaluations for the FWS-approved management plan and concluded that the helicopter hazing operations would not adversely affect the Yellowstone grizzly, a threatened species that inhabits the same area. An environmental group challenged the decision, but the lower court dismissed their claims. On appeal, the appellate court reversed the lower court's holding that the group lacked standing to bring the ESA and NEPA claims as well as the court's ruling that the group failed to comply with the ESA's 60-day notice requirement for citizen suits. Nevertheless, the group's ESA §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. In addition, the court dismissed the group's ESA §9 claim against the state of Montana 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. And the court affirmed the grant of summary judgment to the federal defendants on the NEPA claims. The group argued the defendants should have prepared a supplemental EIS based on “significant new circumstances or information” pertaining to the management plan. But the government addressed those issues during the initial final EIS process.