Alliance for Wild Rockies v. United States Department of Agriculture , 772 F.3d 592 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 13-35253
Plaintiff-Appellant,
D.C. No.
v. 9:11-cv-00076-
CCL
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES
ANIMAL AND PLANT HEALTH OPINION
INSPECTION SERVICE, an agency of
the US Department of Agriculture;
UNITED STATES FOREST SERVICE, an
agency of the US Department of
Agriculture; LESLIE WELDON, in her
official capacity as Regional Forester
of Region One of the US Forest
Service; UNITED STATES
DEPARTMENT OF INTERIOR; UNITED
STATES FISH AND WILDLIFE
SERVICE, an agency of the US
Department of Interior; UNITED
STATES NATIONAL PARK SERVICE,
an agency of the US Department of
Interior; CHRISTIAN MACKAY, in his
official capacity as Executive
Director of the State of Montana
Department of Livestock,
Defendants-Appellees,
and
2 ALLIANCE FOR THE WILD ROCKIES V. USDA
BILL MYERS,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted
November 8, 2013—Seattle, Washington
File November 20, 2014
Before: Mary M. Schroeder, Richard A. Paez, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Paez
SUMMARY*
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,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALLIANCE FOR THE WILD ROCKIES V. USDA 3
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
4 ALLIANCE FOR THE WILD ROCKIES V. USDA
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.
COUNSEL
Rebecca K. Smith (argued), Public Interest Defense Center,
PC, Timothy M. Bechtold, Bechtold Law Firm, PLLC;
Missoula, Montana, for Plaintiff-Appellant Alliance for the
Wild Rockies.
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,
Montana, for Defendants-Appellees Montana Department of
Livestock and Christian Mackay.
ALLIANCE FOR THE WILD ROCKIES V. USDA 5
John E. Bloomquist and Rachel A. Kinkie, Doney Crowley
Payne Bloomquist, P.C., Helena, Montana, for Intervenor-
Defendant-Appellee Bill Myers.
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
only in Washington, Idaho, Montana and Wyoming.
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
1
See Christopher Servheen, Grizzly Bear Recovery Plan, United
States Fish and Wildlife Service, 9 (Sept. 10 1993),
http://www.fws.gov/mountain-prairie/species/mammals/grizzly/
Grizzly_bear_recovery_plan.pdf.
6 ALLIANCE FOR THE WILD ROCKIES V. USDA
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 Endangered Species Act of 1973
(“ESA”), 16 U.S.C. §§ 1531 et seq., the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C.
§§ 4321 et seq., and the National Forest Management Act of
1976 (“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.
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
ALLIANCE FOR THE WILD ROCKIES V. USDA 7
failed to properly give notice of its ESA claims as required by
16 U.S.C. § 1540(g)(2)(A)(i). We also address whether
Alliance’s Section 7 claim under the ESA is moot.
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 brucellosis
transmission to protect the economic interest and viability of
the livestock industry in the state of Montana.” The
Management Plan allows bison to leave Yellowstone
National Park each winter to forage in lower elevations in
Montana’s Gallatin National Forest. In the middle of May of
each year, MDOL encourages the bison to return to
Yellowstone National Park via “hazing” operations.
Approved hazing methods include using riders on horseback,
off-highway vehicles and helicopters to move the bison out
of Montana.
The Park Service, Forest Service, Inspection Service,
Interior and USDA all signed and authorized the Record of
8 ALLIANCE FOR THE WILD ROCKIES V. USDA
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. 50 C.F.R. § 17.11 (2014). Consistent with their
obligations under NEPA, the Park Service, Forest Service and
Inspection Service completed a final environmental impact
statement (“final EIS”) prior to the approval of the
Management Plan. The final EIS analyzed the potential
effects of the Management Plan, including possible hazing
operations, on Yellowstone grizzly bears in the spring, when
they emerge from their dens to feed. It concluded that the
impacts of bison hazing on Yellowstone grizzly bears “would
be short term and negligible” because, “[a]lthough there is the
possibility of overlap in the fall and spring when the bears are
not in dens, during the majority of bison management
activities, bears would be in their dens.” The final EIS noted
that hazing operations would cease if there was evidence of
grizzly bear activity in the hazing area.
In compliance with Section 7 of the ESA, 16 U.S.C.
§ 1536(a)(2), the Park Service also prepared a Biological
Evaluation for the Management Plan, which was approved by
the FWS in 2000. The FWS concurred in the Park Service’s
finding that the Management Plan was “not likely to
adversely affect” Yellowstone grizzly bears, but opined that
reinitiation of consultation might be required if new
information became available suggesting possible effects on
the threatened grizzly bear population. The central basis for
the Biological Evaluation’s finding was that hazing activities
ALLIANCE FOR THE WILD ROCKIES V. USDA 9
would primarily occur while grizzly bears are hibernating.
The Biological Evaluation further noted that “[i]f grizzly
bears are active in the area, operations at the capture facilities
may have to cease.”
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.
Shortly thereafter, while this case was pending in the district
court, the Park Service reinitiated consultation based on new
concerns regarding the impact of cutthroat trout reductions on
grizzly bears and the cumulative effects of the extended
helicopter hazing operations. The 2012 Biological Evaluation
ultimately concluded “that bison hazing activities do not
10 ALLIANCE FOR THE WILD ROCKIES V. USDA
cause injury, decrease productivity, or significantly interfere
with normal behavior patterns of grizzly bears . . . .” The
FWS re-concurred with the Park Service’s conclusion.
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.2 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”), 5 U.S.C. §§ 551 et
seq., alleging violations of NEPA and NFMA, and
“challeng[ing] the U.S. Forest Service’s 2008 management
plan and 2011 annual decision to permit recurring, low-
altitude helicopter flights that harass Yellowstone grizzly
bears, during spring and summer bear season, over National
Forest lands in the Yellowstone Grizzly Bear Recovery
Zone.” The complaint also stated that Alliance would amend
the complaint to include ESA claims after the 60-day notice
period had expired.
2
Alliance later filed an amended notice on June 29, 2011, that added
FWS and Inspection Service.
ALLIANCE FOR THE WILD ROCKIES V. USDA 11
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 federal defendants on Alliance’s
NEPA claims, finding that the Management Plan’s 2000 final
EIS adequately analyzed the impacts of helicopter hazing on
grizzly bears, and the evidence in the record did not require
12 ALLIANCE FOR THE WILD ROCKIES V. USDA
preparation of a supplemental EIS. Finally, the court rejected
the NFMA claim because Alliance failed to show that the
Forest Service violated any provision of the Gallatin National
Forest Plan.
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
3
We review de novo the district court’s grant of summary judgment.
Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011). We also
review de novo a district court’s ruling on issues of standing and
mootness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th
Cir. 2011).
ALLIANCE FOR THE WILD ROCKIES V. USDA 13
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.” 16 U.S.C. § 1536(a)(2). “Action means all
activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies . . . .” 50
C.F.R. § 402.02. We have held that “[t]here is ‘little doubt’
that Congress intended agency action to have a broad
definition in the ESA.” Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc).
Consistent with the broad interpretation of “agency action,”
we have recognized that environmental management plans
14 ALLIANCE FOR THE WILD ROCKIES V. USDA
constitute federal agency actions under the ESA. See Lane
Cnty. Audubon Soc’y v. Jamison, 958 F.2d 290, 293–94 (9th
Cir. 1992).
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 16 U.S.C. §§ 1536(a)(2), 1538(a)(1)(B). It is the
alleged failure to comply with these requirements that is at
the heart of Alliance’s injury in fact and at the heart of the
relief it seeks in this action. Although the federal defendants
argue that Alliance ultimately seeks a “cessation of helicopter
hazing” as a remedy for its injury, and that they have no
ability to provide this relief, this argument misconstrues the
nature of Alliance’s complaint.
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
ALLIANCE FOR THE WILD ROCKIES V. USDA 15
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 50 C.F.R. § 402.16(b).
Because the Management Plan governs actions directed at
bison in the Greater Yellowstone Area, and those actions
have the capacity to affect threatened Yellowstone grizzly
bears, the Management Plan and the federal defendants’
related ongoing responsibilities constitute agency action
sufficient to establish causation for the ESA procedural
injuries Alliance alleges.
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
16 ALLIANCE FOR THE WILD ROCKIES V. USDA
redressability. Because the Management Plan is a federal
action and Alliance’s NEPA claim is a procedural one, we
reverse and hold that Alliance has standing to bring its NEPA
claim.
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.”
42 U.S.C. § 4332(2)(C). The federal defendants argue that
their lack of direct involvement in the helicopter hazing
operations authorized by the Management Plan demonstrates
that there is no major federal action at stake in this case. This
argument again misconstrues the nature of Alliance’s claims.
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.”
ALLIANCE FOR THE WILD ROCKIES V. USDA 17
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. 42 U.S.C.
§ 4332(2)(C).
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, 16
U.S.C. § 1536(A)(2), requires the federal defendants to
reinitiate consultation on the effect of the Management Plan
on Yellowstone grizzly bears due to the extended duration of
helicopter hazing and increasing overlap between areas where
helicopter hazing occurs and grizzly bear denning areas. The
federal defendants argue that Alliance’s Section 7 claim is
18 ALLIANCE FOR THE WILD ROCKIES V. USDA
moot because the federal defendants have already completed
a second Biological Evaluation consultation addressing the
impact of helicopter hazing on Yellowstone grizzly bears.
We agree.
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. 16 U.S.C. § 1536(a)(2). The ESA implementing
regulations further require agencies to reinitiate consultation
if “new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an
extent not previously considered.” 50 C.F.R. § 402.16(b).
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 re-concurrence
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
ALLIANCE FOR THE WILD ROCKIES V. USDA 19
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 50 C.F.R. § 402.16(b).
Reinitiation of consultation is the precise relief sought by
Alliance. Accordingly, Alliance’s Section 7 claim is moot.
See Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377,
1378–79 (9th Cir. 1978) (holding that a challenge to a mining
plan was moot where the action sought to be enjoined had
been completed).4
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. 16
U.S.C. § 1540(g)(1)(A). A plaintiff who seeks to pursue a
citizen suit must comply with a 60-day notice requirement
that “put[s] the agencies on notice of a perceived violation of
the statute and an intent to sue.” Sw. Ctr. for Biological
Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520
(9th Cir. 1998). The notice requirement provides agencies
with “an opportunity to review their actions and take
corrective measures if warranted.” Id. Accordingly, it is a
4
Alliance asserts that under Forest Guardians v. Johanns, 450 F.3d 455
(9th Cir. 2006), it is still entitled to declaratory relief that the Park Service
and FWS have a continuing obligation to engage in reconsultation. Unlike
in Johanns, however, there is no evidence in the summary judgment
record to suggest that the Park Service has been uncooperative in the
Section 7 consultation process, nor that the Park Service is under any
annual obligation to undertake consultation absent new information. See
id. at 462. Accordingly, Johanns does not apply here.
20 ALLIANCE FOR THE WILD ROCKIES V. USDA
“mandatory condition[] precedent to commencing suit” under
the ESA, Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31
(1989), and a failure to comply “acts as an absolute bar to
bringing suit under the ESA.” Sw. Ctr. for Biological
Diversity, 143 F.3d at 520.
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 § 1540(g)(2)(A)(i) when it filed the amended
complaint.
“[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 –
5
Alliance argues that our prior decision in Ecological Rights
Foundation v. Pacific Gas and Electric Company, 713 F.3d 502 (9th Cir.
2013), “recognizes that a plaintiff may amend a complaint to add claims
after a 60-day notice ripens.” In that case, both the original and the
amended complaints were filed more than sixty days after notice was
given. 713 F.3d at 506–7, 519. Accordingly, Ecological Rights did not
resolve the question raised here.
ALLIANCE FOR THE WILD ROCKIES V. USDA 21
(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;
16 U.S.C. § 1540(g)(1)(A). Under Section 11(g)(2)(A),
[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 . . . .
16 U.S.C. § 1540(g)(2)(A).
The plain language of § 11(g)(2)(A)(i) unambiguously
states that actions under the ESA may not commence until 60
days after a potential plaintiff has notified the Secretary and
any alleged violator of a purported ESA violation. In
considering the mandatory nature of a similar notice
requirement in the Resource Conservation and Recovery Act
(the “RCRA”) in Hallstrom, the Supreme Court concluded
that the statutory requirement “could not be clearer,” and the
notice requirement is a condition precedent that the plaintiff
must satisfy before commencing suit. Hallstrom, 493 U.S. at
26.6
6
As the Supreme Court noted in Hallstrom, the language in the notice
and delay provision of the RCRA echos the 60-day notice provision in
Section 304 of the Clean Air Amendments of 1970. See Hallstrom, 493
22 ALLIANCE FOR THE WILD ROCKIES V. USDA
The text of § 11(g)(2)(A)(i) also makes clear that the
notice requirement pertains only to actions commenced under
§ 11(g)(1)(A). Section 11(g)(2)(A)(i), like the RCRA notice
requirement, specifically limits the applicability of the notice
requirement to those actions commenced under Section
11(g)(1)(A) of the ESA and extends only to the citizen suit
provision contained in the statute. See Hallstrom, 493 U.S.
at 26; 42 U.S.C. § 6972(b)(1) (1982 ed.). Although the
federal defendants urge that the legislative purpose of the
notice requirement is to afford agencies a complete “litigation
free window” in which to remedy alleged ESA violations,
they fail to identify any provision in the statute which
suggests that the ESA’s notice requirement should be
interpreted to preclude filing of a complaint alleging non-
ESA claims before the 60-day notice period expires.
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
U.S. at 23 (citing 42 U.S.C. § 7604 (1982 ed.)). Since the enactment of
Section 304, at least sixteen other federal environmental statutes have
incorporated almost identical notice provisions, including the ESA. Id. at
23 n.1.
ALLIANCE FOR THE WILD ROCKIES V. USDA 23
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 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
Section 11(g)(2)(A)(i) as encompassing claims under NEPA
and NFMA, we would be imposing a de facto notice
requirement for cases that also potentially raise ESA issues
where Congress has explicitly declined to do so. This we
decline to do. See Iselin v. United States, 270 U.S. 245, 251
(1926) (holding that the courts will not read language into a
statute where it would result in “an enlargement of [the
statute] by the court, so that what was omitted . . . may be
included within its scope”).
Thus, although Alliance gave notice of its intent to file
suit under § 11(g)(1)(A), that notice did not limit its right to
file an action alleging non-ESA claims before the 60-day
notice period expired. Once the 60-day notice period expired,
Alliance could properly commence its suit under the ESA by
amending its complaint to include claims under Sections 7
and 9 of the ESA.
We are not the only court to read a provision similar to
§ 11(g)(2)(A)(i) in this manner. In Zands v. Nelson, 779 F.
Supp. 1254, 1257 (S.D. Cal. 1991), the district court
24 ALLIANCE FOR THE WILD ROCKIES V. USDA
addressed whether the plaintiff had prematurely commenced
suit under the RCRA when the plaintiff amended the original
complaint to add a RCRA claim. The plaintiffs had filed their
initial complaint prior to giving the 60-day notice, but waited
until almost a year after the notice period expired to amend
the complaint. Id. The district court concluded that, “for
purposes of a notice and delay provision relating to a new
claim which appears for the first time in the pleadings in the
amended complaint, the Court will look to the filing of the
amended complaint to determine when the ‘action’ is
commenced.” Id. at 1259. In so holding, the district court
reasoned that where plaintiffs have claims that do not require
notice, they should not be required to forego raising those
claims in a timely manner, as “the [c]ourt [does not] believe
that Congress intended that the notice and delay provision . . .
would impede plaintiffs’ ability to bring claims that do not
have notice and delay provisions.” Id. at 1261. Accordingly,
the district court aptly noted, while the 60-day notice
requirement encourages voluntary compliance with the
requisite statute, “[t]his purpose in and of itself does not
warrant the creation of a ‘non-adversarial’ period that is not
explicitly in the statute.” Id. We agree with the reasoning of
Zands and hold that, for purposes of notice, we may look to
the filing of an amended complaint to determine when an
action is commenced under the ESA. See Zands, 779 F.
Supp. at 1259. Accordingly, Alliance properly complied with
the requirements of Section 11(g)(2)(A)(i) when it filed an
amended complaint alleging its ESA claims after the 60-day
notice period expired.7
7
The federal defendants and MDOL urge us to follow the reasoning of
Proie v. National Marine Fisheries Service, No. C11-5955BHS, 2012 WL
1536756 at *4 (W.D. Wash. May 1, 2012), which held that the 60-day
notice period must be a “litigation-free window” precluding the filing of
ALLIANCE FOR THE WILD ROCKIES V. USDA 25
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
§ 11(g)(2)(A)(i).8
any complaint. But Proie concerned a different situation. In Proie, the
plaintiffs gave notice of their intent to sue under the ESA but, 21 days
later, filed a complaint alleging claims under the APA seeking judicial
review of a purported ESA violation. Id. at *1, 3. After the 60-day notice
period expired, the plaintiffs filed an amended complaint adding a claim
for relief directly under the ESA. Id. at *1. Because both the APA and
the ESA claims arose from the same alleged ESA violation, the district
court determined that the plaintiffs improperly attempted to circumvent
the ESA’s “litigation-free” period and, therefore, “failed to comply with
the requisite notice period.” Id. at *3–4 (internal quotation marks
omitted). Unlike in Proie, Alliance’s original complaint did not indirectly
raise an ESA claim, but instead alleged NEPA and NFMA claims distinct
from any ESA violations.
8
Alliance sent its original ESA 60-day notice letter to the Forest
Service, Park Service, MDOL, USDA and Interior. On July 8, 2011, it
served an amended ESA notice naming Inspection Service and FWS.
Alliance has subsequently explained that the second ESA notice was “not
used by [Alliance] as the basis for litigation.” Because Inspection Service
and FWS were not given notice of the ESA claims in the original notice,
and that is the notice upon which Alliance relies, we affirm the district
26 ALLIANCE FOR THE WILD ROCKIES V. USDA
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 summary
judgment on this claim and dismissing the claim against
MDOL.
Section 9 of the ESA prohibits the taking of an
endangered or threatened species. 16 U.S.C. § 1538(a)(1)(B).
The ESA defines “take” to mean “to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture or collect, or to attempt
to engage in any such conduct.” 16 U.S.C. § 1532(19).
“Harass” is further defined as “an intentional or negligent act
. . . which creates the likelihood of injury to wildlife by
annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3; see
also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1068 (9th
Cir. 1996). A take may involve a past or current injury, or the
prospect of an imminent threat of harm to a protected species.
Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d
781, 784 (9th Cir. 1995).
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.
court’s dismissal of Alliance’s ESA claims against FWS and Inspection
Service.
ALLIANCE FOR THE WILD ROCKIES V. USDA 27
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.
28 ALLIANCE FOR THE WILD ROCKIES V. USDA
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
Under NEPA, federal agencies are directed to prepare an
EIS to analyze the environmental consequences of their
proposed actions. 42 U.S.C. § 4332(2)(C). This requirement
“ensures that the agency, in reaching its decision, will have
available, and will carefully consider, detailed information
concerning significant environmental impacts.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
Although NEPA does not impose substantive obligations on
agencies, the EIS is a “procedural requirement[] designed to
force agencies to take a ‘hard look’ at environmental
consequences.” Earth Island Inst. v. U.S. Forest Serv., 351
F.3d 1291, 1300 (9th Cir. 2003). Once an original EIS has
been completed, NEPA requires that agencies perform a
supplemental EIS whenever “[t]he agency makes substantial
changes in the proposed action that are relevant to
environmental concerns or [] [t]here are significant new
circumstances or information relevant to environmental
9
Alliance’s only claim for relief under the NFMA is that, to the extent
there is any supplemental EIS prepared for the Management Plan, any
action conducted in part in the Gallatin National Forest must comply with
the Gallatin National Forest Plan under NFMA. Because a supplemental
EIS is not required, we do not further address the NFMA claim.
ALLIANCE FOR THE WILD ROCKIES V. USDA 29
concerns and bearing on the proposed action or its impacts.”
40 C.F.R. § 1502.9(c)(1); see also Klamath Siskiyou
Wildlands Ctr. v. Boody, 468 F.3d 549, 560 (9th Cir. 2006).
An impact on a threatened or endangered species is a factor
that can give rise to the requirement to perform a
supplemental EIS. 40 C.F.R. § 1508.27(b)(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
10
We assume, without deciding, that the circumstances here constitute
ongoing major Federal action for purposes of 42 U.S.C. § 4332(2)(C). See
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 72 (2004).
30 ALLIANCE FOR THE WILD ROCKIES V. USDA
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.
Indeed, the final EIS explicitly incorporated this “possibility
of overlap” it its ultimate determination that “[b]ison
management activities such as hazing,” “would not have
more than a negligible impact on grizzly bears.” Thus, while
the final EIS presumed that the majority of helicopter hazing
operations would occur while Yellowstone grizzly bears were
still in hibernation, the final EIS does not require that this be
the case. Instead, the final EIS considered the potential
impacts to Yellowstone grizzly bears even were encounters
to occur. To the extent that the final EIS contemplated that
evidence of grizzly bear activity in the area might force
helicopter hazing operations to cease, this remains the policy
of the Management Plan. Disputes may arise as to whether
this policy has been violated by the alleged harassment of
Yellowstone grizzly bears by helicopters, see supra Section
IV.B., but the final EIS clearly evaluated the Management
Plan’s policy toward encounters between hazing operations
and Yellowstone grizzly bears.
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. 40 C.F.R. § 1502.9(c)(1). Rather, they are
independent inquiries resulting in independent evaluations.
Moreover, to the extent that the 2012 Biological Evaluation
ALLIANCE FOR THE WILD ROCKIES V. USDA 31
has any bearing on the need to complete a supplemental EIS,
the Biological Evaluation concluded that new information
available on the impact of helicopter hazing on Yellowstone
grizzly bears was not so significant as to change the original
determination concerning whether the Management Plan was
likely to adversely affect grizzly bears.
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 40 C.F.R.
§ 1502.9(c)(1).
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
32 ALLIANCE FOR THE WILD ROCKIES V. USDA
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.