Here’s a link with a bit of interpretation. Other interpretations are welcome!
Attached is the Court’s decision, issued today, in AWR v. Weldon. The Court granted US motion for summary judgment and denied Plaintiff’s motion.
The court held that it lacks jurisdiction over the ESA claims for lack of a 60-day NOI and lack of standing. The court found that Plaintiff violated the 60-day notice requirement by failing to actually give the required 60 days prior to amending their complaint. The court also notes that the NOI is defective because it fails to name APHIS and FWS. Notwithstanding the NOI issue, the Court found that Plaintiff lacked standing as to the Section 7 claims for lack of a showing of causality and redressability between the Federal Defendants’ alleged violations, the alleged harms and the relief sought. Even if the Court had jurisdiction, the Section 7 claim as to the Federal Defendants is moot because the agencies reinitiated consultation. (The court noted that Plaintiff’s challenge to Montana’s helicopter hazing program is not moot because the State stands ready to recommence helicopter hazing if it acquires funding, thus it falls under an the voluntary cessation exception to the mootness doctrine.) As to the Section 9 claim, the court looked to the declarations of USG experts and the 2012 BE in responding to evidence that plaintiffs submitted to support their take claim and agreed with USG argument that there was no evidence in the record that helicopter hazing of bison constitutes a “take” of grizzly bear within the meaning of Section 9.
As to the NEPA claim, the court found that Plaintiff lacks standing, yet went on to analyze the merits of Plaintiff’s NEPA claim. The Court noted that the FEIS notes that a majority of management activities will take place while bears are in their dens, while still acknowledging the possibility of overlap into the fall and spring when bears are out of their dens. The FEIS contemplated that hazing would be conducted on a flexible schedule. “The FEIS clearly demonstrates a consideration of hazing when bears are present because the FEIS notes the policy that ‘hazing operations would cease if there was evidence of grizzlies being active in the area.’” The Court also rejected Plaintiff’s argument that new circumstances or information required supplementation of the FEIS.
Finally, noting that Plaintiff lack standing, the Court went on to reject Plaintiff’s NFMA claim stating that it is Plaintiff’s burden to show a NFMA violation and they had failed to do so.
Congrats to the Gallatin, Region, OGC and DOJ and anyone else!
Side note… I find that footnotes are sometimes interesting.
Neither NPS nor USFS considers itself to have in any way permitted or authorized the State of Montana’s hazing activities in Montana (whether in airspace over the Gallatin National Forest or in the airspace over Yellowstone National Park). Montana’s authority to conduct helicopter hazing is not given to
Montana by the IBMP (which provides no legal or governmental authority to any IBMP partner but rather draws its legal authority from the powers of the government signatories themselves). Rather, Montana’s authority to conduct helicopter hazing arises from the legal authority of the State of Montana to
manage its own wildlife: “Montana has the right under its own police powers to protect the health, safety, and welfare of its inhabitants by removing possibly infected YNP bison that migrate into Montana.” Intertribal Bison Co-op. v. Babbitt, 25 F.Supp.2d 1135, 1137 (D. Mont. 1998) (citing Fund for Animals, Inc. v. Lujan, 794 F.Supp. 1015 (D. Mont. 1991)), aff’d sub nom. Greater Yellowstone
Coalition v. Babbitt, 175 F.3d 1149 (9th Cir. 1999). The fact that hazing–in general–is discussed in the 2000 Record of Decision (as cited by Plaintiff) merely underscores the fact that hazing has been addressed in prior NEPA analysis. (See FS AR Doc 1 at 11.) As to AWR’s attempt to use the testimony of a witness (Mr. Mackay) to support its argument that helicopter hazing is a federally authorized
program, the Court merely comments that legal conclusions are for the Court, not
lay or expert witnesses. See Aguilar v. Int’l Longshoremen’s Union Local #10, 966 F.2d 443, 447 (9th Cir. 1992) (excluding legal expert’s opinion as to legal matters because the opinion offered is an inappropriate subject for expert testimony).
This thread of lack of standing winds its way through all of the claims filed by AWR: the ESA claims are weakened because no federal action underlies the complained-of activity; 4 the claim for additional NEPA supplementation is weakened because no new federal action has occurred since the original NEPA
analysis was prepared; and the NFMA claim is weakened because the Forest This thread of lack of standing winds its way through all of the claims filed by AWR: the ESA claims are weakened because no federal action underlies the complained-of activity; 4 the claim for additional NEPA supplementation is
weakened because no new federal action has occurred since the original NEPA analysis was prepared; and the NFMA claim is weakened because the Forest Service issues no permit and takes no action to allow the State of Montana’s helicopter hazing in the airspace over the Gallatin National Forest.5
AWR attempts to call federal agencies to task for allegedly violating federal environmental statutes, but the actual conduct complained of is the conduct of the State of Montana. The Court concludes that AWR’s standing to assert claims against the Federal Defendants is lacking in both causality and redressability.
UPDATE FROM MATTHEW: I was curious about this case, so I took the step of actually contacting the attorney for Alliance for the Wild Rockies. Here is the information she sent me about the case:
We wanted federal agencies to do ESA consultation on the IBMP (Interagency Bison Management Plan) for helicopter hazing impact on grizzlies. They fought and fought. After we finished briefing, they did the consultation. So judge ruled yesterday that our ESA consultation claim was moot because they had finally done consultation. There were other minor issues, but the main issue was forcing them to do consultation, which we accomplished. And the lawsuit was against all the federal IBMP partners, not just Forest Service. So the agencies didn’t really “win” since they were finally forced to do consultation.