case 1:19-cv-00128-spw document 4-1 filed 10/23/19 page 1

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MATTHEW D. THURLOW, D.C. Bar No. 1008014 Baker & Hostetler LLP 1050 Connecticut Avenue, NW Washington, DC 20036 (202) 861-1681 [email protected] JARED S. PETTINATO, D.C. Bar No 496901 Jared Pettinato Law Offices 3416 13th St. NW, #1 Washington, DC 20010 (406) 314-3247 [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NEIGHBORS AGAINST BISON SLAUGHTER, et al.,

Plaintiffs,

v.

The NATIONAL PARK SERVICE, et al.,

Defendants.

Case No.

Judge

PLAINTIFFS’ AND POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION

Case 1:19-cv-00128-SPW Document 4-1 Filed 10/23/19 of 51

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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. ii

TABLE OF CONTENTS

Table of Acronyms and Abbreviations .......................................................................................... iii

Chronology .................................................................................................................................... iv

Introduction ..................................................................................................................................... 1

Legal Background ........................................................................................................................... 3

I. Yellowstone Enabling Act and Amendments ...................................................................... 3

II. Forest Service Management Statutes ................................................................................... 3

III. The National Environmental Policy Act .......................................................................... 4

Factual Background ........................................................................................................................ 5

I. Bison Form an Integral Part of the Greater Yellowstone Ecosystem. ................................. 5

II. Montana Views Brucellosis as a Threat to the Cattle Ranching Industry. .......................... 6

III. Montana Agreed to the Bison Management Plan the U.S. Agencies Proposed. .............. 8

IV. Hunting Has Continued Escalating Since the 2000 IBMP EIS. ..................................... 11

V. The Hunt Has Increased Dangers to Property Owners, Neighbors, and Visitors. ............. 13

Standards of Review ..................................................................................................................... 16

I. Administrative Procedure Act............................................................................................ 16

II. Preliminary Injunction and Temporary Restraining Order ................................................ 17

Argument ...................................................................................................................................... 17

I. Neighbors is Likely to Prevail on its Legal Claims. .......................................................... 17

A. The Forest Service Unreasonably Regulated the Land Congress Assigned it to Regulate. ................................................................................................................................ 18

B. The Park Service Can Control the Bison Hunting in Beattie Gulch. ............................. 21

C. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan as Connected Actions. ............................................................. 29

D. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan in a Supplemental, Federal Environmental Analysis. ............. 33

II. The Balance of the Equities Weighs Heavily in Favor of Stopping the Bison Hunt at Beattie Gulch Until the Parties Can Brief the Merits. ............................................................... 36

A. The Bison Hunt Will Cause Neighbors Irreparable Harm. ............................................ 36

B. The Federal Agencies Will Suffer No Irreparable Injury from Stopping the Hunt. ...... 43

C. The Public Interest Weighs in Favor of Stopping the Bison Hunt in Beattie Gulch...... 44

Conclusion .................................................................................................................................... 45


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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. iii

TABLE OF ACRONYMS AND ABBREVIATIONS

2019 Winter Decision [2019] Operating Procedures for the IBMP (Dec. 31, 2018)

APA Administrative Procedure Act, 5 U.S.C. §§ 701-706

APHIS USDA Animal Plant Health Inspection Service

CEQ Council on Environmental Quality

Environmental Assessment EA

Environmental Impact Statement EIS

IBMP Interagency Bison Management Plan

Montana Livestock Montana Department of Livestock

Montana Wildlife Montana Department of Fish, Wildlife and Parks

MUSYA The Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531

Neighbors Neighbors Against Bison Slaughter

NEPA National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m-12

NFMA National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614

Park Service National Park Service

Record of Decision ROD

Yellowstone Management Act Amendments

Act of January 24, Pub. L. No. 67-395, 43 Stat. 1174, 1214 (codified at 16 U.S.C. § 36)


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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. iv

CHRONOLOGY

Date Event 1994 APHIS informed the Montana State Veterinarian it intended to revoke

Montana’s brucellosis class-free designation if Montana failed to stop bison leaving Yellowstone. Interagency Bison Mgmt. Plan Envtl. Impact Statement 39.

1995 Montana sued the United States to force it to keep Yellowstone bison within Yellowstone. Montana v. Babbitt, No. 95-6-H-CCL (D. Mont. 1995).

2000 Several federal agencies and Montana decided to implement an interagency bison management plan (IBMP) and formed the IBMP Committee.

2003 The 2003 Montana Legislature authorized Montana Wildlife to consult and to cooperate with Montana Livestock to issue rules for “fair chase hunting of wild buffalo or bison . . . .” S. Bill 395 § 1(d) (codified as amended at Mont. Code Ann. § 81-2-120 (2019)).

2004 Montana analyzed the environmental effects of allowing hunting in Beattie Gulch under the Montana Environmental Policy Act (MEPA), Mont. Code Ann. §§ 75-1-101 to 324. Mont. Final Bison Hunting EA 20 (Sept. 30, 2004).

2005 Montana reestablished bison hunting for the first time since 1991. Letter from Montana Fish, Wildlife and Parks (Montana Wildlife) to Interested Person (Sept. 2, 2018) (Mont. 2018 Letter).

2007 Montana Wildlife set the bison hunting season from November 15 to February 15. IBMP Operating Procedures 9 (Nov. 16, 2007).

2011 The Federal Agencies analyzed the possibility of allowing more tribal hunting in Beattie Gulch. Mem. To Files, IBMP Agencies, Adaptive Management Adjustments to [IBMP] and [NEPA/MEPA] Documentation 11 (Dec. 1, 2011).

2015 The Forest Service closed eighteen acres to hunting. Montana Wildlife, Hunting Season/Quota Change Supporting Info. 2 (Sept. 19, 2019).

January 2017

Montana concluded that “the safety issues continue to escalate [in Beattie Gulch] and the fear for injury or death to hunters is real.” Letter from Dave Loewen, Montana Wildlife Chief of Law Enforcement, et al. to Sam Sheppard, R3 Supervisor et al. (Jan. 27, 2017) (2017 Mont. Letter), Ex. V.

November 2017

Forest Service pushed hunting farther west of Old Yellowstone Trail, South, and deeper west into Beattie Gulch. See Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017).

2018 Montana again concluded that the “density of hunters has increased beyond what [Montana Wildlife] considers safe.” Mont. 2018 Letter. It proposed closing part of Beattie Gulch to Montana-licensed hunters. Id.

2019 The IBMP further expanded hunting at Beattie Gulch. 2019 Winter Decision 6.


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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. v


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Neighbors Against Bison Slaughter v. Nat’l Park Serv. PLS.’ P. & A. IN SUPP. OF MOT. FOR TRO AND PRELIM. INJ. 1

INTRODUCTION

Sooner or later the chaotic, overcrowded, and unsafe bison hunting at Beattie Gulch will kill

or seriously injure someone. Beattie Gulch lies just north of Yellowstone National Park’s border

in Montana, on Custer Gallatin National Forest land. The bison hunt has escalated in recent years

as more Native American tribes and state-licensed hunters participate and more bison are taken.

Now, during the winter, the National Park Service lets bison leave Yellowstone, so hunters can

slaughter them by the hundreds on a tiny parcel of Forest Service land.

The Park Service aims to keep the Yellowstone wild plains bison1 population below 3,000

because, when higher population numbers make grass and other food harder to find in the winter,

and some bison head north out of Yellowstone in search of forage.2 One of the easiest paths out

of Yellowstone runs through a bottleneck, “quarter-mile-square area at the mouth of Beattie

Gulch . . . .”3 The Federal Agencies have turned Beattie Gulch into a killing field. See [2019]

Operating Procedures for the IBMP (Dec. 31, 2018) (the 2019 Winter Decision), Ex. D. There,

dozens of hunters, often with their families, scramble for a prize as they gun down bison,

including pregnant females and calves, as soon as the bison step foot out of Yellowstone onto

Forest Service land. See Yellowstone Buffalo Hunt: A Native Perspective, Buffalo Field

Campaign (May 31, 2018), youtube.com/watch?v=9GfoDhk6WGY (video exhibit Plaintiffs will

lodge).

The Federal Agencies give hunting priority to Native American tribes who claim that their

treaties reserved aboriginal bison hunting rights. See 2019 Winter Decision 3. In winter 2012-

1 Scientists classify plains bison as Bison bison bison. S.M. Adams & A.R. Dood, Background Info. on Issues of Concern for Mont.: Plains Bison Ecology, Mgmt., and Conservation, Mont. Dep’t of Fish, Wildlife and Parks 7 (June 2011) (Plains Bison Ecology), Ex. A. 2 Interagency Bison Mgmt. Plan Final Envtl. Impact Statement (IBMP FEIS) 192, Ex. B. 3 Letter from Montana Wildlife to Interested Person (Sept. 2, 2018) (2018 Mont. Letter), Ex. C.


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2013, the Federal Agencies began allowing four tribes to hunt in Beattie Gulch.4 By 2019, four

tribes had expanded to six. 2019 Winter Decision 6. In the meantime, the number of bison kills

there has increased from zero in 1990 to 2005, to 59 in 2007, and to 389 in 2016-2017.5

The dramatically expanded and escalating tribal hunt has forced neighbors—some only a few

hundred yards away—to bear the economic costs and physical risks of the slaughter. The hunt

puts those neighbors in extreme physical danger from dozens of excited and poorly managed

hunters shooting haphazardly at groups of bison; the hunt causes extreme noise; and, perhaps

worst of all, the hunt leaves tens of thousands of pounds of rotting, potentially disease-laden

bison carcasses littered across this small geographic area. Local residents can only flee their

homes and abandon their businesses during the winter. For years, the Federal Agencies have

ignored the local residents’ plight and the extreme dangers of the hunt because they seem to

think they have no alternatives to this gruesome, unsanitary, and dangerous hunt.

The Federal Agencies misapprehend their legal authorities. They deny jurisdiction over the

hunt, although Congress gave the Forest Service authority “to regulate [the national forests’]

occupancy and use,” which includes ensuring public safety. 16 U.S.C. § 551 (the Forest Service

Organic Act). Also, Congress assigned the Park Service broad discretion to manage surplus

Yellowstone bison in Yellowstone, and even beyond its boundaries. Act of January 24, Pub. L.

No. 67-395, 43 Stat. 1174, 1214 (codified at 16 U.S.C. § 36) (the Yellowstone Management Act

Amendments). Finally, although the Federal Agencies control and even pay for bison

management, they have failed to complete the analysis that the National Environmental Policy

4 Mem. to Files, IBMP Agencies, Adaptive Management Adjustments to [IBMP] and [NEPA/MEPA] Documentation 11 (Dec. 1, 2011) (2011 Document), Ex. E. 5 See Chris Geremia et al., Status Report on the Yellowstone Bison Population, Park Service (Sept. 2017), Ex. F.


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Act (NEPA), 42 U.S.C. §§ 4321-4370m-12, requires. The Federal Agencies have violated the

Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, by misinterpreting their authority

and by arbitrarily and capriciously failing to consider important aspects of the bison hunt.

The balance of the harms weighs heavily in favor of a temporary restraining order and

preliminary injunction to temporarily halt the bison hunt until the Federal Agencies fulfill their

duties, complete the analyses the law requires, and minimize the dangers of the hunt to local

property owners, neighbors, and visitors.

LEGAL BACKGROUND

I. Yellowstone Enabling Act and Amendments

In 1872, Congress created Yellowstone National Park as the first national park in the world.

IBMP EIS xxx. Congress designated Yellowstone a “public park or pleasuring ground for the

benefit and enjoyment of the people.” 16 U.S.C § 21. To preserve Yellowstone, Congress

assigned “exclusive control” of it to the Secretary of the Interior. Id. It assigned duties to

“provid[e] for the preservation, from injury or spoliation . . . the natural curiosities, or wonders,

within the park, and their retention in their natural condition.” Id.

But Congress did not stop there. About twenty years after establishing Yellowstone, it

responded to bison poaching by prohibiting hunting in Yellowstone. 16 U.S.C. § 26. In 1923,

about fifty years after establishing Yellowstone, Congress delegated authority to the Secretary of

the Interior to donate Yellowstone bison to “Federal, State, county, and municipal authorities for

preserves, zoos, zoological gardens, and parks.” Yellowstone Management Act Amendments. It

also authorized the Secretary to “sell or otherwise dispose of the surplus” Yellowstone bison. Id.

II. Forest Service Management Statutes

The Forest Service manages the National Forests under the Forest Service Organic Act of

1897, 16 U.S.C. §§ 472-482, 551, the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), id.


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§§ 528-531, and the National Forest Management Act of 1976 (NFMA), id. §§ 1600-1614. The

Organic Act gives the Forest Service broad authority to “to regulate [the national forests’]

occupancy and use.” Id. § 551.

III. The National Environmental Policy Act

NEPA requires federal agencies to “ensure[] that the[y] will not act on incomplete

information, only to regret [their] decision after it is too late to correct.” Marsh v. Or. Nat. Res.

Council, 490 U.S. 360, 371 (1989). It also requires agencies to make information broadly

available, so “the public and other government agencies [can] react to the effects of a proposed

action at a meaningful time.” Id. NEPA established the Council on Environmental Quality

(CEQ), and CEQ promulgated regulations to govern NEPA compliance. 42 U.S.C. § 4342; see

40 C.F.R. §§ 1500.1-1517.7; Implementation of Procedural Provisions, 43 Fed. Reg. 55,978

(Nov. 29, 1978); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354 (1989).

NEPA requires an agency to “take a hard look at environmental consequences” of “major

Federal actions.” Robertson, 490 U.S. at 350 (quotation marks and citation omitted); 42 U.S.C.

§§ 4321, 4332(2)(C); 40 C.F.R. § 1500.1(c). The hard look ensures that agencies “consider every

significant aspect of the environmental impact of a proposed action” and “inform the public” of

their analyses and conclusions. Balt. Gas & Elec. Co v. NRDC, 462 U.S. 87, 97 (1983).

When a major federal action may significantly affect the environment, NEPA requires the

acting agency to analyze the action in an environmental assessment (EA) or in an environmental

impact statement (EIS). 40 C.F.R. §§ 1501.3, 1501.4. As part of that process, NEPA requires the

agency to compile a draft EIS, id. § 1502.9(a), and to present that draft to the public and to other

agencies for notice and comment. Id. § 1503.1(a). After the agency evaluates and responds to the

comments, it prepares a final EIS. Id. § 1502.9(b). This process culminates in a record of

decision that explains the agency’s rationale. Id. § 1505.2.


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FACTUAL BACKGROUND

During the 1990s, several federal agencies and Montana developed a bison management

plan. They issued the final Plan in 2000. Membership has expanded. Now, the Interagency Bison

Management Plan (IBMP) members include nine agencies, tribes, and organizations:

1. The Park Service, 2. The Forest Service, 3. USDA Animal Plant Health Inspection Service (APHIS), 4. The Montana Board of Livestock (Montana Livestock), 5. The Montana State Veterinarian, 6. Montana Fish, Wildlife and Parks (Montana Wildlife), 7. The Confederated Salish and Kootenai Tribes, 8. The Nez Perce Tribe, and 9. The Intertribal Buffalo Council.

IBMP Partner Protocols 2 (Aug. 28, 2018), Ex. G.

These members have implemented the bison management plan for almost twenty years as

their plan has changed. Today, the bison management plan does not even remotely resemble the

plan the group created in 2000. Federal IBMP Record of Decision (the IBMP ROD), Ex. H. At

that time, no one foresaw an intense, concentrated bison hunt in Beattie Gulch. As a result, no

agency has analyzed the impacts of the concentrated hunting in Beattie Gulch on human health

and safety.

I. Bison Form an Integral Part of the Greater Yellowstone Ecosystem.

The Greater Yellowstone Ecosystem qualifies as the “largest and most nearly intact

ecosystem in the contiguous United States.” IBMP FEIS vi. Before Europeans arrived in the

Americas, bison ranged from Idaho and North Dakota south to the Rio Grande. IBMP FEIS 17

(map). In more recent times, the United States made Yellowstone a sanctuary for a population of

wild and free-ranging bison. See 16 U.S.C. § 36; All. for the Wild Rockies v. USDA, 772 F.3d

592, 595 (9th Cir. 2014). In 2017, the Park Service counted 4,816 bison in Yellowstone. 2018

Annual Report of the [IBMP] 4, Ex. I.


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The IBMP agencies consider bison an “essential component” of Yellowstone because they

“contribute to [its] biological, ecological, cultural, and aesthetic purposes . . . .” IBMP EIS i.

Nonetheless, the ecosystem in Yellowstone spreads beyond its boundaries. Id. at i. When food

runs out during winter, bison often migrate out of Yellowstone to lower elevations in search of

more. See Bison Winter Movements Map, id. at 31. That winter migration increases the

likelihood that bison might mingle with cattle. Id. at 305. The IBMP agencies, however, seek to

prevent that mingling because Montana ranchers fear the bison transmitting brucellosis to cattle.

Id. at 27, 130, 305 (“Strategies to ensure separation of cattle and bison explained above would be

the primary means to manage the risk of transmission. . . . In areas where cattle are present in the

winter, bison are not allowed.”).

II. Montana Views Brucellosis as a Threat to the Cattle Ranching Industry.

Brucellosis in Montana’s cattle could cost the agriculture industry tens of millions of dollars

per year. The bacterium Brucella abortus causes brucellosis in cattle. Id. at ix. It has no cure. Id.

Brucellosis can cause calves to abort, can slow weight gain in calves, and can delay calving until

later in a cow’s life. Id. at xii. In humans, Brucella abortus causes undulant fever. Id. at xliv. If

left untreated with antibiotics, undulant fever can cause, for several weeks or months,

intermittent fever, chills, night sweats, body and joint pain, poor appetite, and weakness. Id. at

xliv-xlv; APHIS EA, Evaluation of GonaCon™ as a Means of Decreasing Transmission of

Brucella abortus in Bison in the Greater Yellowstone Area (APHIS EA) (May 2012) 2, Ex. L.

Brucella abortus spreads when new hosts ingest contaminated birth materials. IBMP EIS x.

Cattle and bison ingest that material when they socially sniff or lick a newborn calf, the

afterbirth, or an aborted fetus; or when calves drink milk from infected mothers. APHIS EA 1.

Under some conditions, the bacteria can survive on fetal tissues, vegetation, and soil for as long

as eighty-one days. Id. Humans can catch Brucella abortus when they drink unpasteurized milk,


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or when they directly contact infected animal tissues, like aborted fetuses or reproductive

materials. APHIS EA 2. Vaccines can prevent some cows and bison from catching brucellosis,

but no vaccine prevents transmission one hundred percent. IBMP EIS ix.

APHIS leads the state and federal agencies’ long efforts to eliminate brucellosis from cattle

in the United States. APHIS EA 2. They have nearly completed that task. As of July 2009, it had

classified all 50 States as Class-Free (disease-free) of brucellosis for domestic cattle and bison.

APHIS EA 2. The Greater Yellowstone Ecosystem presents the last hurdle to eliminating

brucellosis in wild elk and bison. Id.

Montana covets its class-free brucellosis status. When APHIS designates Montana as “class-

free,” it assures purchasers that cattle from Montana do not have brucellosis. IBMP EIS 39. In

the past, when purchasers have perceived that Montana cattle could have brucellosis, they have

demanded Montana cattle ranchers to test their cattle before a sale. Id. Testing alone could cost

the Montana cattle industry $5.1 to $16.3 million per year. Id. at 338 (in 2000 dollars). Montana

cattle prices could fall, and that could conceivably cost Montana cattle ranchers $4.7 to $22.5

million per year. Id. The losses would “be far from crippling,” but could severely hurt some

cattle producers. Id. at 339. For comparison, Montana cattle producers sold, on average from

1995-2000, $730 million of cattle and calves each year. Id. at 39.

In 1994, APHIS informed the Montana State Veterinarian it intended to revoke Montana’s

class-free designation if Montana failed to stop bison leaving Yellowstone. Id. at 39. Montana

felt frustrated that the United States’ right hand was making threats while the left hand, the Park

Service, was actually causing the risk by failing to manage bison leaving Yellowstone. See Mont.


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Final Bison Hunting EA II (Sept. 30, 2004), Ex. J. So Montana sued the United States.6 The

federal agencies and Montana ultimately settled the case and agreed to finish the bison

management plan that they had started years earlier.7

III. Montana Agreed to the Bison Management Plan the U.S. Agencies Proposed.

After settling their case in 1996, and after issuing a draft environmental impact statement on

bison management in 1998, the Park Service, the Forest Service, and APHIS reached an impasse

with Montana. Id. at 1. Montana had demanded the Park Service vaccinate every bison in

Yellowstone before Montana would “tolerate” untested bison outside Yellowstone. Id. at 10. The

Park Service, the Forest Service, and APHIS explained that the existing science could not

support that decision, but they assured Montana that their current plan would protect Montana’s

livestock industry. Id. at 3-11. The agencies reconciled after the Park Service, the Forest Service,

and APHIS issued their EIS.

In 2000, the Park Service, the Forest Service, and APHIS declared that they intended “to

maintain a wild, free ranging population of [Yellowstone] bison and address the risk of

brucellosis transmission to protect the economic interests and viability of the livestock industry

in Montana.” See IBMP EIS 22. The IBMP EIS analyzed three alternatives that allowed public

bison hunting, if the Montana Legislature authorized a fair-chase hunt for bison. See id. at xx.

Alternative 3 would have relied on public bison hunting to regulate the bison population and

distribution outside Yellowstone. IBMP EIS xviii. Alternative 4 would have added public

hunting as “another tool . . . to help agencies control population numbers and distribution.” Id. at

6 See Intertribal Bison Co-op. v. Babbitt, 25 F. Supp. 2d 1135, 1137 (D. Mont. 1998); Montana v. Babbitt, No. 95-6-H-CCL (D. Mont. 1995). 7 Letter from James R. Lyons, Undersecretary for Natural Resources and Env’t, USDA, et al. to Marc Racicot, Montana Governor 2 (Dec. 13, 1999), IBMP FEIS 714, Ex. K.


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xx. Alternative 7 would have allowed “low levels of hunting” in special management areas

outside Yellowstone. Id. at xxii.

In the end, the Park Service, the Forest Service, and APHIS did not choose any of those

alternatives. Instead, they chose a management strategy that slightly altered the IBMP EIS

modified, preferred alternative. IBMP ROD 5. Those modifications likely resulted from further

negotiations with Montana. See Cover Letter, Mont. IBMP ROD (Dec. 22, 2000), Ex. L.

Eventually, Montana, the Park Service, the Forest Service, and APHIS adopted the same

management plan. Montana issued a separate record of decision to satisfy the Montana

Environmental Policy Act (MEPA), Mont. Code Ann. §§ 75-1-101 to 324. Mont. IBMP ROD.

The IBMP ROD initially allowed some bison to exit Yellowstone in winter to forage in an

area north of Gardiner, Montana, toward Yankee Jim Canyon. IBMP ROD 29 (map designating

area as “Zone 2”). In spring, the IBMP agencies expected Montana to move those bison back

into Yellowstone by herding or “hazing” them with riders on horseback, vehicles, or helicopters.

IBMP ROD 11, 51 (helicopters); IBMP EIS 85.

The IBMP agencies adopted a three-step adaptive management approach for “bison on winter

range outside Yellowstone . . . .” IBMP ROD 10; Mont. IBMP ROD 4. As they learned more

about bison management, they intended to adapt and to take incremental steps forward. IBMP

ROD 10. Under step 1, north of Yellowstone, the IBMP agencies intended to “haze” the bison to

keep them within Yellowstone. Id. at 11-12. If that failed, they would capture, test, and vaccinate

the bison that escaped. Id. They intended to start step 2 in the 2002 winter. Id. at 12. Under step

2, they intended to allow incrementally more bison, tested and clean of brucellosis, north of

Yellowstone until April 15. Id. Then, Montana intended to haze any remaining bison back into

Yellowstone. See id. Step 3 would extend Step 2 to untested bison. Id. at 13.


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Before the Federal Agencies issued their 2000 ROD, the Park Service had started culling the

bison population within Yellowstone to ensure the population did not exceed 3,000. IBMP ROD

52. Now, the Park Service decides how many bison to slaughter as they migrate north out of

Yellowstone to “meet population management and conflict resolution objectives.” 2019 Winter

Plan 4. The Park Service lets some of the bison continue north for hunters, quarantines some for

research, and transfers some to the Assiniboine and Sioux Tribes’ Fort Peck Reservation. 2019

Winter Plan 10-13. See Beth Cataldo, The Secret of Beattie Gulch (Sept. 23, 2019),

youtube.com/watch?v=AUSEPP7WOAA (demonstrative video exhibit Plaintiffs will lodge with

the Court showing the bison migration pattern out of Yellowstone toward Beattie Gulch).

When the Park Service slaughters migrating bison, it distributes the “meat, hides, and other

bison parts to support tribal nutrition and culture; thereby allowing more tribal members to

benefit from the healthy benefits bison provide.” Id. at 11. Some years, the Park Service has not

slaughtered any bison, but some years it captures up to 700, 800, and even 1,200 bison at the

Stephens Creek facility for transport to slaughterhouses. 2018 Annual Report of the [IBMP] 16-

17 (Dec. 31, 2018).

As the agencies implemented the IBMP plan, the United States paid for it, but Montana

called the shots. Between 2002 and 2008, the agencies spent $2 million to implement the IBMP.8

Montana paid only $100,000 and the U.S. paid the other $1.9 million. Id.9

8 General Accountability Office, Interagency Plan and Agencies’ Management Need Improvement to Better Address Bison-Cattle Brucellosis Controversy at PDF page 2 (Mar. 2008), Ex. M. 9 Montana has continued analyzing areas where bison could roam outside Yellowstone. In 2015, it designated more land west of Yellowstone. Decision Notice, Year-round Habitat for Yellowstone Bison 7 () (Nov. 2015), Ex. O.


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The agencies negotiated and reached agreements based on their understanding of their

jurisdiction. The Federal Agencies believe that their jurisdiction over Yellowstone bison ends at

Yellowstone’s border. See Answering Br. for the Fed. Appellees 4, Cottonwood Envtl. Law Ctr.

v. Bernhardt, appeal docketed, No. 19-35150 (9th Cir. Aug. 2, 2019). The Federal Agencies take

the position that, “[w]ithin the Park, the [Park Service] has exclusive jurisdiction to manage the

Park’s natural resources, including bison . . . . Outside the Park within the State of Montana—

including within the Gallatin National Forest . . . —the State has authority to manage bison, and

state law permits them to be hunted.” Id.

IV. Hunting Has Continued Escalating Since the 2000 IBMP EIS.

Since 2000, Montana has completed two EAs to change bison management. The Park

Service and the Forest Service have completed no further EISes or EAs. In 2005, as the 2000

IBMP EIS had anticipated, Montana reestablished bison hunting for the first time since 1991.10

The 2003 Montana Legislature authorized Montana Wildlife to consult and to cooperate with

Montana Livestock to issue rules for “fair chase hunting of wild buffalo or bison . . . .” S. Bill

395 § 1(d) (codified as amended at Mont. Code Ann. § 81-2-120 (2019)),

leg.mt.gov/bills/2003/billpdf/SB0395.pdf, Ex. N. In particular, the Montana Legislature limited

hunters to hunting only “on foot and away from public roads.” Id.

Following the Montana Legislature’s direction, in 2004, the Montana agencies issued an

environmental assessment and a decision notice under MEPA. They explained that, in the 1980s,

the Montana Legislature had stopped bison hunting in response to negative publicity from bison

hunts in the 1980s. Mont. Final Bison Hunting EA 20 (Sept. 30, 2004), Ex. M. Now that

Montana reauthorized bison hunting, Montana Wildlife decided to implement fair-chase hunts in

10 2018 Mont. Letter; IBMP FEIS xx.


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specific locations, and only during an annual season that it would set. Bison Hunting Decision

Notice 25, Ex. P. Montana Livestock and the Montana State Veterinarian agreed. Id. at 26. By

2007, Montana Wildlife set the bison hunting season from November 15 to February 15. IBMP

Operating Procedures 9 (Dec. 6, 2002, updated Nov. 16, 2007), Ex. Q.

In 2011, the Park Service, the Forest Service, and the other IBMP partners concluded that

their various changes to the bison management plan did not amount to a significant change. 2011

Document. Among other changes, the agencies approved increasing tribal hunting opportunities.

Id. at 2, 5. They concluded that “Tribal treaty hunters [need only] follow their own regulations,”

but they expected Montana Wildlife to coordinate with the tribes, so the impacts would remain

within the scope of alternatives the agencies analyzed in the IBMP EIS. Id. at 11

APHIS also relaxed its protocols for downgrading a state from its status as “class-free” of

brucellosis. Id. The changes allowed states to “investigate[] and contain[]” outbreaks without

losing their status. Id. The IBMP agencies concluded that the existing NEPA and MEPA

analyses already reviewed the environmental effects of the changes they had made to the bison

management plan. Id. at 8.

In the first year under the 2011 changes, hunters killed more bison north of Yellowstone than

they had killed there in the prior seven years combined.

Year Total Bulls

Total Cows

Total Unknown

Annual Total

Running Total

2005 27 0 0 27 27 2006 18 1 26 45 72 2007 19 6 34 59 131 2008 1 0 0 1 132 2009 1 0 0 1 133 2010 2 0 5 7 140 2011 2 0 0 2 142 2012 98 43 33 174


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Bison Harvest Data, Winter 2005 - 2012, Ex. R. The potential for 174 kills per year changed the

character of hunting in Beattie Gulch. Hunting there dramatically intensified—without the

Federal Agencies analyzing its impacts.

V. The Hunt Has Increased Dangers to Property Owners, Neighbors, and Visitors.

The Forest Service has made minor alterations to hunting configurations, but more hunters

have participated and killed more bison, and the danger of the hunt to property owners,

neighbors, and visitors has increased over time. 2018 Mont. Letter. By the 2016-2017 winter,

hunters had killed 389 bison in Beattie Gulch. Ex. F. Montana Wildlife understands the danger to

people, but like the Park Service and the Forest Service, it has failed to make the hunt safer.

Beattie Gulch hunters shoot bison only about 200 yards from over a dozen private residences

and businesses. See Bonnie Lynn Decl. ¶ 28, Ex. S; Ex. U. Neighbors Against Bison Slaughter

(Neighbors) members own property, live, or visit their property between Old Yellowstone Trail,

South, on the west, and the Yellowstone River, on the east. Some even live east of Beattie Gulch

and east of the conservation easements connected to Devil’s Slide. See IBMP EIS 33 (map). A

condominium association of cabins sits directly on the Yellowstone River. Lynn Decl. ¶¶ 1, 6, 8.

Although the Forest Service has failed to provide a safe bison hunt in Beattie Gulch, it has

acknowledged its authority to regulate hunting there. According to Montana, in 2015, the Forest

Service closed eighteen acres to hunting for safety.11 Two years later, it pushed hunting farther

west of Old Yellowstone Trail, South, and deeper west into Beattie Gulch.12

In the fall of 2018, Montana Wildlife proposed closing part of Beattie Gulch to Montana-

licensed hunters because too many hunters were shooting too many bison on too small of an

area. Montana found, “[i]n recent years, 200-300 bison are harvested every year within a quarter-

11 Montana Wildlife, Hunting Season/Quota Change Supporting Info. 2 (Sept. 19, 2019), Ex. T. 12 See Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017), Ex. U.


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mile-square area at the mouth of Beattie Gulch and the density of hunters has increased beyond

what [Montana Wildlife] considers safe.” 2018 Mont. Letter. Commonly, “20-30 or more hunters

. . . shoot simultaneously as groups of bison cross the boundary.” Id. Montana had recognized

that “the safety issues continue to escalate and the fear for injury or death to hunters is real.”13

In the end, Montana Wildlife pulled that proposal to close Beattie Gulch hunting without

explaining why. See Summary Report from the [IBMP] Meeting 6 (Nov. 28, 2018), Ex. W. The

status quo won out over safety again. Montana Governor Steve Bullock has recognized a pattern

of complexities driving bison management decisions back to the status quo, even when no one

prefers it: “On-going rancor regarding [Yellowstone] bison management can lead to indecision

or a default to status quo or a ‘no action’ alternative, regardless of whether the current

management is effective.” [Mont.] Decision Notice, Year-round Habitat for Yellowstone Bison 7

(Nov. 2015).

Montana Wildlife has generally considered the impacts of hunting on new subdivisions, but

no one has analyzed those particular effects in Beattie Gulch in any NEPA document. Montana

Wildlife has found that bullets from a rifle can travel between one and four miles.14 It has

recognized that “occasional stray bullets can threaten [residents’] safety or damage their homes.”

Id. In other words, property owners, neighbors, and visitors could die in their living rooms from

a single hunter’s mistake or failure of judgment because the Federal Agencies refuse to act.

Moreover, the Federal Agencies have created circumstances that drastically increase the chances

of those mistakes or failures of judgment. One resident near Beattie Gulch saw “saw a tribal

13 Letter from Dave Loewen, Montana Wildlife Chief of Law Enforcement, et al. to Sam Sheppard, R3 Supervisor et al. (Jan. 27, 2017) (2017 Mont. Letter), Ex. V. 14 See [Montana Wildlife] Recommendations for Subdivision Development, App’x C.3, fwp.mt.gov/fwpDoc.html?id=55372, Ex. X.


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game warden’s signal lights as he raced to where a shooter was firing at other people.” Sue

Oliver Decl. ¶ 5, Ex. Y. That danger not only evicts the property owners, neighbors, and visitors

from their homes and property, but also scares away visitors who would rent the cabins there.

Lynn Decl. ¶ 36.

Bison hunters leave behind hundreds of “gut piles,” each of which can weigh hundreds of

pounds. See IBMP EIS 324 (estimating bison weigh between 900 and 1,100 pounds, and

estimating that hunters take only 60 % of that weight). This offal rots in the open, attracts

wildlife, and raptors and ravens drop it into trees and yards on private property, and turns the

entire local area into an open-air charnel house. Lynn Decl. ¶¶ 30-35. The gut piles risk

transmitting Brucella abortus and threaten the health of other animals and people. Dr. Peter Nara

Decl. ¶¶ 16-18, Ex. Z.

For years, property owners, neighbors, and visitors have objected at regular IBMP public

meetings. Lynn Decl. ¶¶ 60-64. The IBMP has ignored and sidelined their legitimate concerns

and done nothing to limit the hunt, as the hunting forces property owners, neighbors, and visitors

to flee the area for months at a time, causes their businesses to lose money, and severely

traumatizes them. Id. ¶¶ 2, 24, 36, 40, 59. The hunt has continued to expand as the Federal

Agencies have allowed more bison to leave Yellowstone and have allowed more hunters to kill

bison there. Rather than address this untenable and escalating situation, the Federal Agencies

have foisted the dangerous and concentrated impacts of bison hunting onto a small group of

private property owners, neighbors, and visitors. Id. ¶¶ 36, 63.

The hunt has stopped one Neighbor member, Bonnie Lynn, from renting her cabins as

vacation rentals in the winter. Id. ¶¶ 40, 41. She was planning to use the cabins to fund her


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modest retirement plans, but because the cabins are no longer covering their costs, she nearly

sold one cabin to help her make ends meet. Id. ¶¶ 11, 48-50.

STANDARDS OF REVIEW

I. Administrative Procedure Act

Congress created a private cause of action and waived sovereign immunity for claims like

these in the Administrative Procedure Act. “A person . . . adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5

U.S.C. § 702. The APA directs the Court to “hold unlawful and set aside agency action, findings,

and conclusions” that qualify as

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “short of statutory right,” or “without observance of procedure required by law.”

Id. § 706(2)(A), (C), (D). It also requires this Court to “compel agency action unlawfully

withheld . . . .” 5 U.S.C. § 706(1).

The Supreme Court has identified several agency actions that would qualify as arbitrary and

capricious:

If “the agency has relied on factors which Congress has not intended it to consider,”

If the agency “entirely failed to consider an important aspect of the problem,”

If the agency “offered an explanation for its decision that runs counter to the evidence before [it]”, or

If the decision “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm), 463

U.S. 29, 43 (1983).

The APA affirmatively requires the agency not only to “examine the relevant data,” but also

to “articulate a satisfactory explanation for its action” that includes a “rational connection


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between the facts found and the choice made.” Id. at 43 (quotations omitted). Courts may not

simply “rubber-stamp” agency action if it is “inconsistent with a statutory mandate” or if it

“frustrate[s] the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 292

(1965); N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th Cir. 2012).

II. Preliminary Injunction and Temporary Restraining Order

Courts issue “interim equitable relief” like temporary restraining orders and preliminary

injunctions “to balance the equities as the litigation moves forward.” Trump v. Int’l Refugee

Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). Courts consider “the same factors

in ruling on a motion for a temporary restraining order and a motion for a preliminary

injunction.” Morgan Stanley DW, Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). Courts

issue temporary restraining orders and preliminary injunctions when a plaintiff establishes “that

[it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the

public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008).

ARGUMENT

I. Neighbors is Likely to Prevail on its Legal Claims.

The Park Service and the Forest Service misapprehend their statutory authorities. As a result,

they have left a vacuum of control over Yellowstone bison and hunting on Forest Service land.

The Federal Agencies have failed to comply with NEPA by hiding behind Montana’s

environmental analysis instead of doing their own. Primarily, they have failed to analyze all

Yellowstone bison management decisions, including hunting, as a single connected action in a

single environmental impact statement. See 42 C.F.R. § 1508.25. Neighbors will likely prevail

on these claims.


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A. The Forest Service Unreasonably Regulated the Land Congress Assigned it to Regulate.

The Forest Service has failed to consider the safety of citizens from the concentrated bison

hunting on National Forest System land in Beattie Gulch. The Forest Service has violated its

management duty to protect the public, and it has violated the APA by “entirely fail[ing] to

consider an important aspect of the problem . . . .” State Farm, 463 U.S. at 43.

Congress directed the Forest Service to “to regulate [the national forests’] occupancy and

use.” 16 U.S.C. § 551, id. §§ 521a, 1609. It required the Forest Service to cooperate with states

as they enforce state laws on Forest Service lands, which include laws “with regard to stock . . .,

and for the protection of fish and game . . . .” Id. §§ 551a, 553. The Forest Service’s regulations

further authorized it to close areas for “Public health or safety.” 36 C.F.R. § 261.53(e).

With that authority, the Forest Service owes a “degree of protection” to United States citizens

and property owners. See United States v. Union Pac. R. Co., 91 U.S. 72, 80 (1875) (recognizing

the general government obligation); Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961)

(“The Government of course has an obligation to protect its citizens from harm.”). The Property

Clause gives the United States jurisdiction to implement those public safety protections on its

own lands regardless of Montana’s laws or regulations. See Hunt v. United States, 278 U.S. 96,

100 (1928) (“the power of the United States to thus protect its lands and property does not admit

of doubt . . . ., the game laws or any other statute of the state to the contrary notwithstanding.”);

see Martin Nie et al., Fish and Wildlife Management on Federal Lands: Debunking State

Supremacy, 47 Envtl. L. 797, 857-58 (2017) (Fish and Wildlife Management).

Nonetheless, in the 2019 Winter Plan, the Forest Service left Montana “primary

responsibility regarding the public bison hunt, in cooperation with [Montana Livestock], as

directed by state statute.” 2019 Winter Plan at 3. The Forest Service believes it lacks jurisdiction

to manage the hunt. Id.; see IBMP ROD 21 (“[B]ison that leave YNP are under the management


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jurisdiction of the State of Montana.”)).15 The Forest Service left Montana Wildlife to “work

with landowners who have human safety and property damage concerns.” 2019 Winter Plan 5.

But the Forest Service misapprehends its jurisdiction.

The Forest Service’s actions demonstrate that it has authority to close areas for public safety.

See 2019 Winter Plan 3 (recognizing authority to implement 36 C.F.R. Part 261). And indeed, it

has closed two areas around Beattie Gulch. In 2015, the Forest Service shut down hunting on

eighteen acres there. Montana Wildlife, Hunting Season/Quota Change Supporting Information 2

(Sept. 19, 2019). In 2017, the Forest Service pushed bison hunting about 200 yards deeper into

Beattie Gulch. Custer Gallatin National Forest, Order No. 01-11-03-18-01 (Nov. 20, 2017).

Nonetheless, the Forest Service has violated the APA by failing to explain that contradiction:

why it closes some areas, while leaving most of Beattie Gulch open to bison hunters who

endanger property owners, residents, and visitors.

The Forest Service has violated the APA by failing to consider the particular impacts of

concentrated hunting at Beattie Gulch on the local property owners, neighbors, and visitors. See

State Farm, 463 U.S. at 48-49 (finding an APA violation because “[t]here are no findings and no

analysis here to justify the choice made, no indication of the basis on which the [agency]

exercised its expert discretion.” (quotations omitted)).

Moreover, the Forest Service never completed the analysis it promised in the IBMP ROD,

and it never explained why it did not do that analysis. In the 2000 IBMP Record of Decision, the

Federal Agencies deferred further NEPA analysis of hunting: “Until the federal agencies review

15 Cottonwood Envtl. Law Ctr. v. Zinke, Fed. Defs.’ Br. in Supp. of Mot. to Dismiss 8 (Apr. 23, 2018), ECF No. 18-1 (“Thus, the hunt is occurring outside of [Park Service] land, on lands open to hunting, under the jurisdictional authority of the state of Montana and the respective tribes.”), appeal docketed, No. 19-35150 (9th Cir. Aug. 2, 2019).


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actual bison hunting proposals, we cannot opine as to the necessity of additional NEPA

compliance to implement a public hunt as part of the Joint Management Plan.” IBMP ROD 15.

But the Forest Service never completed that analysis; instead, it left Montana to do it without

explaining why the Forest Service did not do it for the 2019 Winter Plan.

The APA requires “a more detailed justification than what would suffice for a new policy

created on a blank slate . . . when . . . its new policy rests upon factual findings that contradict

those which underlay its prior policy . . . .” FCC v. Fox Television Stations, Inc., 556 U.S. 502,

515 (2009). The Forest Service failed to provide any detailed justification for approving the

hunting configuration in the 2019 Winter Plan.

To be clear, the APA does not allow the Forest Service, the Department of Justice, or even

the Court to provide that justification now. Courts “may not supply a reasoned basis for the

agency’s action that the agency itself has not given.” State Farm, 463 at 43, 52. They may not

accept “counsel’s post hoc rationalizations for agency action.” Id. Instead, they can only uphold

agencies’ decisions, “if at all, on the basis articulated by the agency itself.” Id. The Forest

Service acted arbitrarily and capriciously by delegating its promised analysis to Montana

Wildlife without explaining why.

Finally, now that the Forest Service let another agency assume the Forest Service’s authority,

the Forest Service has failed to respond to that other agency’s warnings. Montana Wildlife has

concluded that the hunting in Beattie Gulch “has increased beyond what [it] considers safe.”

2018 Mont. Letter. The “fear for injury or death to hunters is real.” 2017 Mont. Letter. Despite

these plain statements, the Forest Service has approved the hunting in Beattie Gulch in the 2019

Winter Plan. It continues to allow the bison hunt even as the volume of hunters and the danger

increase. The Forest Service never explained why it disagrees with Montana Wildlife, so it has


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arbitrarily and capriciously failed to consider the impacts of the 2019 Winter Plan on human life

and safety. The APA requires the Court to set aside the 2019 Winter Plan.

B. The Park Service Can Control the Bison Hunting in Beattie Gulch.

Just as the Forest Service can control the bison hunt on Forest Service land, the Park Service

also can control the Beattie Gulch bison hunt. The Park Service has misapprehended its

authority, so it has left Montana to fill the vacuum—without making a deliberate choice about

bison hunting. Because the Park Service could have made different decisions if it had understood

its authority, the APA requires the Court to set aside the 2019 Winter Plan.

1. Because the Park Service Can Prevent Bison from Leaving Yellowstone, it Can Exercise Complete Control over Hunting in Beattie Gulch.

Congress gave the Park Service authority to stop every Yellowstone bison from leaving

Yellowstone, and it can use that control to make the Beattie Gulch hunt safe for property owners,

residents, and visitors. Between 1996 and 2000, the Park Service actually implemented its

authority to keep bison from reaching Beattie Gulch (although east of there, the bison could exit

Yellowstone and move north). See IBMP EIS xvi. In the IBMP EIS, the Federal Agencies called

that the no-action alternative. Id.

Under the 2019 Winter Plan, the Park Service exercises its control much differently. Each

year, the Park Service effectively decides the maximum number of bison that leave Yellowstone.

See 2019 Winter Plan 4. It does not encourage bison to leave Yellowstone, but as the bison

naturally migrate across the border, the Park Service captures some bison at Stephens Creek for

slaughter, while allowing other bison into Beattie Gulch for hunters to shoot. See id. at 4

(“During capture operations, sufficient numbers of bison will be allowed to pass by the facility to

continue to provide treaty and state hunting opportunities.”), 10. As the trend moves toward

allowing hunters to kill more bison there, the Park Service can more easily meet its population


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objectives for bison in Yellowstone without capturing, feeding, transporting, and paying

slaughterhouses to process hundreds more bison. See id. at 9, 10-12. Thus, the Park Service can

control the hunt or stop it regardless of what Montana prefers. See Hancock v. Train, 426 U.S.

167, 179 (1976) (“Because of the fundamental importance of the principles shielding federal . . .

activities from regulation by the States, an authorization of state regulation is found only when

and to the extent there is a clear congressional mandate[ and] specific congressional action that

makes this authorization of state regulation clear and unambiguous.”).

2. The Yellowstone Management Act Amendments Gave the Park Service Authority Beyond Yellowstone’s Boundaries.

Separately, with the Yellowstone Management Act Amendments, Congress gave the Park

Service authority to control the bison hunt directly when it gave authority to “otherwise dispose

of” surplus Yellowstone bison. The Park Service has misapprehended that mandate by

concluding that its jurisdiction stops at the Yellowstone border. Only the correct legal

interpretation of the Act will allow the Park Service to make a reasoned decision.

Congress’s delegation to the Park Service overrides any state’s authority over Yellowstone

bison. Of course, the states “have broad trustee and police powers over wild animals within their

jurisdictions,” but “those powers exist only in so far as their exercise may be not incompatible

with, or restrained by, the rights conveyed to the Federal government by the Constitution.”

Kleppe v. New Mexico, 426 U.S. 529, 544, 545 (1976). The Supremacy Clause, the Property

Clause, and the Commerce Clause give Congress authority over Yellowstone bison, and

Congress delegated that authority to the Park Service in the Yellowstone Management Act

Amendments.

The Kleppe decision controls this case. There, Congress had passed the Wild Free-roaming

Horses and Burros Act, 16 U.S.C. §§ 1331-1340. It declared “[a]ll wild free-roaming horses and


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burros . . . to be under the jurisdiction of the [respective] Secretary for the purpose of

management and protection . . . “as components of the public lands . . . .” 16 U.S.C. § 1333(a).

When a rancher in New Mexico complained to the Bureau of Land Management (BLM) about

“several unbranded burros” near his grazing allotment, the BLM told him it would not remove

the burros. Kleppe, 426 U.S. at 533. New Mexico rounded up nineteen burros and sold them at

auction. Id. The BLM demanded New Mexico return them to public lands, but New Mexico

refused and filed suit. New Mexico argued that the Wild Horses and Burros Act violated “the

State’s traditional trustee powers over wild animals.” Id. at 541. The Supreme Court rejected

those arguments. It concluded that the Wild Horses and Burros Act fell within “the complete

power that Congress has over public lands,” which “includes the power to regulate and protect

the wildlife living there.” Id. at 540-41.

In Kleppe, the Supreme Court explained that the property clause “power . . . is broad enough

to reach beyond territorial limits.” Id. at 538. And “when Congress so acts, the federal legislation

necessarily overrides conflicting state laws under the Supremacy Clause.” Id. at 543. Finally, the

Supreme Court explained that, when “state laws conflict . . . with other legislation passed

pursuant to the Property Clause, the law is clear: The state laws must recede.” Id.; see Fish and

Wildlife Management, 47 Envtl. L. 797, 833 (“attempts to use the Tenth Amendment as a basis

for state sovereignty over federally protected wildlife have generally failed”). Courts have

extended Kleppe in a wide range of contexts. United States v. Bd. of Cnty. Comm’rs, 843 F.3d

1208, 1212 (10th Cir. 2016) (Forest Service trees); Wyoming v. United States, 279 F.3d 1214

(10th Cir. 2002) (elk management); Minnesota v. Block, 660 F.2d 1240, 1252 (8th Cir. 1981)

(motorboats).


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Here, the bison also cross state lines—even within Yellowstone, so the Commerce Clause

gives Congress additional authority to manage the Yellowstone bison. Congress carved

Yellowstone out of three different states (Montana, Wyoming, and Idaho), and these bison

migrate north into Montana from inside the Wyoming portion of Yellowstone. See IBMP EIS 31.

And the Yellowstone bison draw tourism that impacts interstate commerce. In 2000, the IBMP

agencies found that, every year, “United States citizens and people from all over the world spend

more than 9 million visitor days of recreation in developed sites of the Yellowstone area . . . .”

IBMP EIS xxx. Many of those visitors come to see bison. “[I]n modern times, wildlife viewing is

the primary activity for many visitors who come to [Yellowstone]. Bison are ranked as one of the

top 10 animals visitors hope to see on a visit . . . .” Id.

Therefore, because Yellowstone bison cross state lines and because they affect interstate

commerce, the Constitution gives Congress authority to regulate them directly—even when they

may cross into Montana and onto private lands. To this point, Chief Justice John Marshall

recognized that “[c]ommerce among the States, cannot stop at the external boundary line of each

State, but may be introduced into the interior,” and “[t]he power of Congress . . ., whatever it

may be, must be exercised within the territorial jurisdiction of the several States.” Gibbons v.

Ogden, 22 U.S. at 194, 196 (1824), quoted approvingly by Douglas v. Seacoast Prods., Inc., 431

U.S. 265, 276 (1977); see Kleppe, 426 U.S. at 538.16 Thus, when Congress delegated to the Park

Service authority over the Yellowstone bison, that authority extended into Montana.

16 Montana has asserted that its law prohibiting bison transfer supersedes the Park Service authority to transfer bison under 16 U.S.C. § 36. In particular, in 2016, it prohibited the Park Service from transferring forty-nine bison to the Assiniboine and Sioux tribes at the Fort Peck Reservation. Matthew Brown, Montana tribes seek wild bison transfer to reservation, Associated Press (Aug. 15, 2016), billingsgazette.com/news/state-and-regional/montana/montana-tribes-seek-wild-bison-transfer-to-reservation/article_420ae766-57ac-5db5-a250-c94a2461800a.html.


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3. Congress Understood the Critical Plight of Bison When it Assigned the Park Service the Duty of Distributing Bison More Broadly.

The history of bison underscores Congress’s intent in the Yellowstone Management Act

Amendments. The Supreme Court recognizes that “courts, in construing a statute, may with

propriety recur to the history of the times when it was passed; and this is frequently necessary, in

order to ascertain the reason as well as the meaning of particular provisions in it.” Union Pac. R.

Co., 91 U.S. at 79, quoted approvingly by Leo Sheep Co. v. United States, 440 U.S. 668, 669

(1979). The United States’ tragic, near-destruction of the bison species, and the bison’s tenuous

survival, explain Congress’s motivation to manage bison directly.

When Euro-American explorers arrived, they wrote, the plains are “black and appeared to be

moving” with the herds of bison. IBMP EIS xlv. Those explorers most commonly estimated the

bison numbered between 30 and 65 million. Id.

By the mid-1850s, consumers were demanding bison robes, so hunters sent hundreds of

thousands of bison hides east. Id. at 21-23. After the Civil War, as the United States turned its

attention to westward expansion, its army began supporting bison slaughter as a military tactic to

starve Native Americans and to eliminate a resource that Native Americans could use for barter.

Id. at 22. These forces obliterated the bison herds. See id.; but see IBMP EIS 364 (adding cattle-

born disease as one “contributing factor”). Between 1881 and 1884, bison almost vanished from

the plains. Plains Bison Ecology 24-25. By 1889, one expert estimated the entire plains and

wood bison population at 1,091. Id. at 27.

A few hundred bison hid out in Yellowstone. Id. at 28. At that time, however, no federal law

made poaching a crime, so federal agents could do nothing to punish poachers, and could only

escort them out of Yellowstone. Id. In 1894, Congress finally created protections for bison and

criminal penalties for poaching in Yellowstone. Act of May 7, 1894, Pub. L. No. 53-72, 28 Stat.


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73 (codified at 16 U.S.C. § 26). Unfortunately, that law did not stop bison numbers from

declining. By 1902, only twenty-three bison lived in Yellowstone. IBMP EIS 364; see Plains

Bison Ecology 28.

Those twenty-three bison, another small herd living wild in Texas, and a few private herds,

together comprised the remnants of the entire species. Plains Bison Ecology 28. A handful of

people, however, felt a “duty, privilege, and pleasure” at saving the bison. Id. Concerned citizens

started the American Bison Society in 1905. Id. at 31. They named Theodore Roosevelt as

honorary president. IBMP EIS 364. Those bison preservationists traded bison among each other

and helped bison numbers grow. Plains Bison Ecology 28-31. In 1908, the American Bison

Society selected thirty-four bison to start the National Bison Range in Moiese, Montana. Id. at

28-29; Act of May 23, 1908, Pub. L. No. 60-192, 35 Stat. 251, 267-68. Today, however,

scientists consider the Yellowstone herd as the only population that has continuously lived wild.

Plains Bison Ecology 34; IBMP EIS 364.

At the same time as the bison preservationists were exchanging bison to save the species,

Congress gave broad authority to the Park Service over the Yellowstone bison herd in the

Yellowstone Management Act Amendments.

4. Congress Assigned the Park Service Broad Discretion to Control Bison that Might Leave Yellowstone.

That history, combined with the ordinary meaning of the Yellowstone Management Act

Amendments, demonstrates that Congress preempted any conflicting state laws by giving the

Park Service broad discretion to manage the Yellowstone bison herd directly—and not just

within Yellowstone.17 A court’s “inquiry begins with the statutory text, and ends there as well if

17 The full text provides:


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the text is unambiguous” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). Here,

Congress gave the Park Service authority over the entire “Yellowstone National Park herd,” gave

it authority to decide what qualifies as “surplus” bison, and gave it authority to “otherwise

dispose of the surplus buffalo.” 16 U.S.C. § 36. The broad power to “otherwise dispose of” the

surplus bison lets the Park Service manage them wherever they may roam. See Greater

Yellowstone Coal. v. Babbitt, 952 F. Supp. 1435, 1443 (D. Mont. 1996) (“section 36 [i]s a statute

giving broad discretion to the [Park Service] to dispose of surplus bison.”).

Courts have recognized the word “dispose” as “a broad and inclusive word.” Waybright v.

Longstreet, 221 Ind. 251, 260, 46 N.E.2d 683 (Ind. 1943). For example, the U.S. Supreme Court

read a statute that asked whether a railroad had “sold or disposed of [land]” to include whether

the railroad had mortgaged that land. Platt v. Union Pac. R.R. Co., 99 U.S. 48, 66 (1878). Later,

when Congress used the phrase “dispose of” to define a firearms crime, the Supreme Court

recognized that Congress “aimed at providing maximum coverage” of the activities it wanted to

criminalize. Huddleston v. United States, 415 U.S. 814, 826-27 (1974).

Dictionaries from the time of the Yellowstone Management Act Amendments also confirm

this broad definition. They define the phrase “dispose of” broadly: “a to determine the fate of; to

fix the condition, employment, etc., of; to direct or assign for a use. Freedom to order their

actions and dispose of their possessions and persons. Locke. b To get rid of; to put out of the

Hereafter the Secretary of the Interior is authorized, in his discretion and under regulations to be prescribed by him, to give surplus elk, buffalo, bear, beaver, and predatory animals inhabiting Yellowstone National Park to Federal, State, county, and municipal authorities for preserves, zoos, zoological gardens, and parks: Provided, That the said Secretary may sell or otherwise dispose of the surplus buffalo of the Yellowstone National Park herd, and all moneys received from the sale of any such surplus buffalo shall be deposited in the Treasury of the United States as miscellaneous receipts.

Yellowstone Management Act Amendments (emphasis added).


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way; to finish with: as, to dispose of rubbish; to dispose of the morning’s mail. c To transfer to

the control of someone else as by selling; to alienate; to part with; to relinquish; to bargain away.

I have disposed of her to a man of business. Tatler.” Webster’s New International Dictionary 644

(1923), Ex. AA. These definitions extend Park Service jurisdiction beyond Yellowstone.

Moreover, Congress added the term “otherwise” before “dispose of,” and that term broadens

Congress’s delegation even further. The Supreme Court has recognized “otherwise” as another

“broad term.” See Gooch v. United States, 297 U.S. 124, 128 (1936). Using that word along with

“dispose of” underscores the doubly broad authority that Congress delegated to the Park Service

to manage the last surviving wild bison population in the world.

Thus, when Congress used the phrase “otherwise dispose of surplus” bison, it understood that

it was preserving for future generations a resource that had almost gone extinct. It understood

that the broad administrative powers it was delegating to the Park Service would include

deciding what to do with the Yellowstone bison herd as it expanded. Because Congress

delegated that broad authority directly over bison, and because Congress knew that bison move

across state lines, Congress could only have expected that the Park Service’s authority would

travel with them.

The Park Service, however, denies that Congress gave it this broad jurisdiction over bison.

The IBMP EIS concluded that, “[w]hen bison leave [Yellowstone], they are no longer within the

jurisdiction of the [Park Service], and management is governed by Montana statutes.” IBMP EIS

376 (citations omitted); see also Park Service-Montana Mem. of Understanding 6-7 (Mar. 18,

2014) (acknowledging separate jurisdiction). This statement is wrong as a matter of law, and the

APA requires the Court to set it aside. “Courts must, of course, set aside [agency] decisions


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which rest on an erroneous legal foundation.” NLRB, 380 U.S. at 292 (quotations omitted);

Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d 603, 609 (1st Cir. 1989) (Breyer, J.).

Contrary to the Park Service’s interpretation, the Yellowstone Management Act

Amendments delegated broad authority to the Park Service to regulate bison—regardless of

Montana’s laws. Even when “congressional enactments obviously curtail or prohibit the States’

prerogatives to make legislative choices respecting subjects the States may consider important,

the Supremacy Clause permits no other result.” Hodel v. Va. Surface Mining Recl. Ass’n, 452

U.S. 264, 290 (1981). The Park Service followed that inaccurate legal conclusion by deciding in

the 2019 Winter Plan that only Montana has jurisdiction to manage Yellowstone bison outside

Yellowstone, although bison may only leave temporarily. The Park Service violated the APA.

The Park Service’s legal error led it to fail to analyze the impacts of hunting on property

owners, neighbors, and visitors outside Yellowstone. To be clear, nothing mandates the Park

Service to exercise all of its authority and to take over the entire bison management scheme from

Montana, just as nothing stops the Park Service from relieving the bison population pressures in

Yellowstone by giving live bison to tribes throughout the United States. Whatever it decides in

the future, however, the Park Service’s legal error meant that, until now, it has never even

considered using its authority beyond the Yellowstone boundary. Therefore, in its latest action in

the 2019 Winter Plan, it arbitrarily and capriciously implemented the Yellowstone Management

Act Amendments and violated the APA. The Park Service can ensure public safety of the bison

hunt. It has acted arbitrarily and capriciously by failing to recognize that authority.

C. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan as Connected Actions.

NEPA also required the Federal Agencies to analyze the concentrated bison hunt. The entire

bison management plan qualifies as a major federal action, so NEPA required the Federal


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Agencies to analyze every aspect of the plan—including the concentrated hunt at Beattie Gulch.

Here, however, the Park Service and the Forest Service have done nothing while Montana

completed further analyses. In 2004, Montana Wildlife analyzed the impacts of Montana’s

hunting statute. Mont. Final Bison Hunting EA II (Sept. 30, 2004). In 2015, Montana looked for

other locations where it could allow wild bison to live. Decision Notice, Year-round Habitat for

Yellowstone Bison 7 (Map) (Nov. 2015). The Federal Agencies deferred to Montana’s analyses

and relied on those Montana analyses, although NEPA required federal analyses.

In direct contradiction of fundamental NEPA principles, the Federal Agencies have illegally

segmented the bison management plan into smaller decisions to avoid their NEPA obligations.

The NEPA regulations preclude separating some “major Federal actions” from others to avoid

finding a significant impact. 40 C.F.R. § 1508.25(a)(1); Big Bend Conservation All. v. FERC,

896 F.3d 418, 423-24 (D.C. Cir. 2018) (“the connected actions doctrine . . . prevent[s] the

government from ‘segmenting’ its own federal actions into separate projects and thereby failing

to address the true scope and impact of the activities that should be under consideration.”

(quotations omitted)); Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987).

NEPA requires agencies to analyze all major federal actions. 42 U.S.C. § 4332(C). When

agencies analyze a major federal action under NEPA, courts require agencies to take a “hard

look” at the environmental impacts of any action. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21

(1976). The regulations require them to analyze not only direct impacts, but also indirect impacts

and cumulative impacts. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.18 NEPA requires federal

18 The regulations define direct effects as effects “caused by the action and [that] occur at the same time and place.” Id. § 1508.8(a). Indirect impacts include impacts “caused by the action and . . . later in time or farther removed in distance, but . . . still reasonably foreseeable.” Id. § 1508.8(b). Cumulative impacts include “the incremental impact of the action when added to


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agencies to analyze “[p]ossible conflicts between the proposed action and the objectives of

Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans,

policies and controls for the area concerned.” 40 C.F.R. §§ 1502.16, 1506.2(d).

NEPA regulations define “major federal actions” to include “programs . . . partly . . .

assisted, . . . regulated, or approved by federal agencies . . . .” 40 C.F.R. § 1508.18(a) (emphasis

added). To determine whether a project qualifies as a major federal action, courts analyze,

among other factors, whether the nonfederal officials would proceed without federal support and

whether “the function and utility of the challenged projects is substantially less dependent on”

federal support. Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975); Enos v.

Marsh, 769 F.2d 1363, 1372 (9th Cir. 1985). Courts have held that “a federal agency’s authority

to influence must be more than the power to give nonbinding advice to the nonfederal actor[;] the

federal agency must possess actual power to control the nonfederal activity.” Ka Makani ‘O

Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 961 (9th Cir. 2002) (quotations omitted);

Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir. 1988); Sugarloaf Citizens Ass’n v. FERC,

959 F.2d 508, 512 (4th Cir. 1992).

The Supreme Court has clarified some of these considerations with its pragmatic approach. It

requires courts to “look to the underlying policies or legislative intent in order to draw a

manageable line between those causal changes that may make an actor responsible for an effect

and those that do not.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774,

n.7 (1983). NEPA draws that manageable line at “the usefulness of any new potential

information to the decisionmaking process,” and an agency can use potential information if it has

other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7.


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“power to act on [that] information.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767-68

(2004). In other words, “control” over the projects subject to that analysis. Id. at 772-73.

Therefore, NEPA applies to a project if and only if the agency has discretionary authority to

decide how or whether to act. “Agency discretion presumes that an agency can exercise

‘judgment’ in connection with a particular action.” Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 668 (2007). Agencies exercise discretion when they have “the power or

right to decide or act according to [their] own judgment; freedom of judgment or choice.” Id.

Here, Congress gave the Park Service and the Forest Service actual control and discretion to

exercise their own judgment over bison management, so NEPA requires them to analyze all

direct, indirect, and cumulative impacts of the bison management plan. The Park Service has

employed a cramped view of its own statutory authorities to avoid complying with NEPA. When

passing NEPA, Congress foresaw situations precisely like this. It prohibited any agency from

“utiliz[ing] an excessively narrow construction of its existing statutory authorizations to avoid

compliance.” 115 Cong. Rec. 39703 (1969), quoted approvingly by Flint Ridge Dev. Co. v.

Scenic Rivers Ass’n, 426 U.S. 776, 788 (1976). As shown above, in the Yellowstone

Management Act Amendments, Congress delegated to the Park Service to decide what bison

qualify as “surplus” and to decide what to do with them. That grant of authority makes the whole

bison management plan subject to Park Service discretion, judgment, and control. See Dep’t of

Transp., 541 U.S. at 767-68; Nat’l Ass’n of Home Builders, 551 U.S. at 668.

As a second source of discretionary control, the Park Service has unquestioned authority to

keep Yellowstone bison within Yellowstone. As a third source, the Organic Act gives the Forest

Service authority to manage the hunt on its own lands. See 16 U.S.C. § 551.


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As a fourth source, the Federal Agencies can control bison management with their purse

strings. Between 2002 and 2008, the United States paid $1.9 million of the $2 million operating

expenses for the bison management plan. Ex. M at PDF page 2. That makes it a major federal

action. “[S]ignificant federal funding turns what would otherwise be a local project into a major

federal action” Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979). Generally, when the United

States agencies pay less than ten percent of a program’s cost, it does not qualify as a federal

action. Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1101 (9th Cir. 2007). Here, however, the

United States is paying for 95 % of the bison management plan’s costs. That overwhelming

proportion of federal funds gives the Federal Agencies control of the bison management plan.

See Sierra Club v. U.S. Fish & Wildlife Serv., 235 F. Supp. 2d 1109, 1120 (D. Or. 2002)

(concluding that an elk study qualified as a federal project when the federal money paid for 75 %

of it). Consequently, NEPA requires the Federal Agencies to analyze the entire action as a

federal project. See id.

For each of these four independent reasons, the bison management plan qualifies as a major

federal action. By issuing the 2019 Winter Plan without analyzing all aspects of the decision, the

Federal Agencies violated NEPA’s requirements to analyze every major federal action.

D. The Federal Agencies Violated NEPA by Failing to Analyze Montana’s Changes to the Bison Management Plan in a Supplemental, Federal Environmental Analysis.

Even if the Federal Agencies had less jurisdiction and control over the bison management

plan, NEPA still required them to issue a supplemental NEPA analysis to analyze the public

safety impacts of a hunt concentrated on a one-quarter-square-mile area near private property

owners, neighbors, and visitors. The concentrated hunt no longer fits within the range of

alternatives the Federal Agencies analyzed in the IBMP EIS, and its impacts—like killing or

seriously injuring property owners, neighbors, and visitors—exceed the impacts the agencies


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expected. Moreover, even as the hunting drastically intensified, the Federal Agencies never

analyzed any alternative locations to disperse hunting to decrease its impacts.

After an agency makes a decision, NEPA requires the agency to supplement its analysis

under two circumstances. First, NEPA compels agencies to issue a supplemental EIS if an

agency changes the action it described in its decision, and if those changes qualify as

“substantial” and “relevant to environmental concerns.” 40 C.F.R. § 1502.10(c)(i). Second,

NEPA compels a supplemental EIS if new information arises, and if that new information

demonstrates the remaining federal action would affect the quality of the environment “in a

significant manner or to a significant extent not already considered.” Marsh, 490 U.S. at 374; 40

C.F.R. § 1502.9(c)(1)(ii). This situation satisfies both tests.

In their 2000 Record of Decision, the agencies specifically deferred their analysis of hunting

impacts until Montana described the hunting parameters. IBMP ROD 15. In 2004, Montana

Wildlife completed an EA that analyzed hunting. In 2011, the IBMP agencies analyzed whether

expanded hunting fit within the environmental impacts of the 2000 IBMP EIS as part of its

adaptive management program. They concluded that “[t]he analyses contained in the FEIS for

the IBMP are still valid and there is no new information or circumstances that would

substantially change the analysis of impacts relative to the proposed adjustments, as described

below.” 2011 Document 11.

The 2011 Document does not satisfy NEPA or the APA because of its circular reasoning. In

the 2011 Document, the Federal Agencies found that “[t]he impacts of public and treaty hunts on

Yellowstone bison are consistent with Alternative 3 of the [IBMP EIS] and the environmental

assessment completed by [Montana Wildlife].” 2011 Document 5. The Federal Agencies

recognized that some “landowners . . . have human safety . . . concerns.” Id. 10. They resolved


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those concerns by referring back to the IBMP EIS. The IBMP ROD, that made the decision

based on that EIS, however, stated that the agencies planned to analyze the impacts of hunting on

property owners, neighbors, and visitors, based on the hunt that Montana allowed. IBMP ROD

15. To date, the Federal Agencies simply never completed that analysis and never explained why

not. The Federal Agencies violated the APA by failing to provide “a reasoned explanation . . . for

disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox

Television, 556 U.S. at 515.

The Federal Agencies will likely argue that their adaptive management approach from the

2000 IBMP ROD allows them to make these changes to the hunting analyzed in the IBMP FEIS.

That argument would misapprehend the function of adaptive management. In many situations,

adaptive management gives agency actions their needed flexibility. “The procedural

requirements of NEPA do not force agencies to make detailed, unchangeable mitigation plans for

long-term, development projects.” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d

497, 517 (D.C. Cir. 2010). Nonetheless, adaptive management does not allow agencies to “defer

decisionmaking about how a resource will be used.” Defs. of Wildlife v. N.C. Dep’t of Transp.,

762 F.3d 374, 386 n.5 (4th Cir. 2014). It does not allow agencies change and intensify their

activity outside the scope of their analysis or in a way that would cause unanalyzed

environmental effects. See id. Here, the agencies used it exactly that way. They intensified the

hunting again and again, so the action no longer fits within the IBMP EIS analysis.

Allowing concentrated, dangerous hunting in Beattie Gulch qualifies as “substantial” change,

“relevant to environmental concerns,” and outside the range of alternatives in the IBMP EIS, so

NEPA compels the Federal Agencies to complete a supplemental EIS to analyze that new action.

See 40 C.F.R. § 1502.10(c)(i).


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Separately, the environmental impacts of concentrated hunting and concentrated bison gut

piles at Beattie Gulch are affecting the quality of the environment “in a significant manner” and

to a significant extent not already considered.” Marsh, 490 U.S. at 374; 40 C.F.R. §

1502.9(c)(1)(ii). The Federal Agencies have never analyzed this new danger to human life in the

2000 IBMP EIS, the 2011 Document, or the 2019 Winter Plan. NEPA requires them to issue a

supplemental NEPA analysis to analyze the risks of concentrated hunting at Beattie Gulch killing

humans and the risks of hundreds of bison gut piles concentrated in one area and spreading

brucellosis.

II. The Balance of the Equities Weighs Heavily in Favor of Stopping the Bison Hunt at Beattie Gulch Until the Parties Can Brief the Merits.

The balance of the equities weighs heavily in favor of stopping the bison hunt at Beattie

Gulch. Neighbors is trying to prevent people from dying. The Federal Agencies, on the other

hand, will suffer no irreparable harm from stopping the bison hunt until the Federal Agencies can

compile their administrative records and the Parties can brief the merits.

A. The Bison Hunt Will Cause Neighbors Irreparable Harm.

If the Court does not stop the bison hunt at Beattie Gulch, irreparable harm will likely result.

The hunt risks death or serious bodily injury to Ms. Lynn or one of her family members. The

hunt also will likely force Ms. Lynn into a precarious financial situation that may compel her to

sell one of her rental cabins on which she had expected to rely for her retirement. The potentially

infectious bison guts left all over Beattie Gulch will threaten to transmit undulant fever to

property owners, neighbors, and visitors. Finally, the hunting will further traumatize Neighbors

by forcing them to continue witnessing disturbing scenes including the shooting of pregnant

bison and calves suffocating in their placentas—right outside their properties. This irreparable

injury weighs heavily in favor of temporarily stopping the bison hunt.


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1. The risk of bullets killing Neighbors members weighs heavily in favor of an injunction.

Concentrated hunting near Neighbors’ properties jeopardizes their lives. This Court has

recognized death as “the ultimate irreparable injury.” Wilson v. Grp. Hospitalization & Med.

Servs., Inc., 791 F. Supp. 309, 314 (D.D.C. 1992) (Greene, J.). In another case, this Court relied

on declarants’ “personal observations over a period of time” and “accounts of their own

experiences” to weigh irreparable injury from imminent risk of death. Al-Joudi v. Bush, 406 F.

Supp. 2d 13, 20 (D.D.C. 2005) (Kessler, J.). The evidence here, that bison hunting in Beattie

Gulch risks lives, demonstrates the same irreparable injury, and with even more force.

Most strikingly, another government agency, Montana Wildlife, who manages the bison hunt

in Beattie Gulch, has concluded that the hunt is no longer “safe.” 2018 Mont. Letter; see also

2017 Mont. Letter. Indeed, rifle bullets can fly up to four miles. Ex. X. For fourteen years. Ms.

Lynn has observed the hunt “only a few hundred yards from [her] land, RV, shed, and [her] two

cabins,” and she has seen increasing numbers of hunters and bullets flying. Lynn Decl. ¶¶ 23, 28.

Ms. Lynn has even heard some hunters shooting after dark, which increases the risk of hunters

shooting something unintentionally. Id. ¶¶ 27. She “fear[s] the bullets whizzing around: for [her]

own personal safety, for the safety of [her] neighbors, and for the safety of [her] friends, family,

and guests.” Id. “During hunting season, staying at [her] own cabins frightens [her] because it

sounds like a war zone.” Id. ¶ 28.

Another neighbor has watched the hunt since 2013. Oliver Decl. ¶ 1. She “worr[ies] about

driving down the road or standing on [her] front porch when wild shots are fired.” Id. She fears

for the children in the neighborhood “rid[ing] their bikes or play outside when the shoot is going

on.” Id. These real-life experiences, that demonstrate the risk of irreparable injury from death or


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serious bodily injury, and they weigh heavily in favor of a temporary restraining order and

injunction.

2. Voluminous, Concentrated Bison Gut Piles that Hunters Leave in Beattie Gulch Create a Looming Threat of Neighbors Contracting Undulant Fever.

The bison gut piles that hunters leave behind risk Neighbors’ health. One neighbor calculated

that hunters left about “30,000 pounds of guts and bison parts . . . in Beattie Gulch alone.” Oliver

Dec. ¶ 7. Dr. Peter Nara, an experienced veterinary immunologist, has concluded that the

concentrated bison hunt at Beattie Gulch creates an “ongoing, unstable, and looming threat” to

human health. Nara Decl. ¶ 2. Dr. Nara served as the Section Chief and a Veterinary Medical

Officer in the Vaccine Resistant Diseases Section of the National Cancer Institute at the National

Institutes of Health. Id. ¶¶ 5-6. He researched brucellosis for the U.S. government, and even

received the Congressional Medal/Order of Merit. Id. ¶¶ 6, 11. In 2005, the Park Service hired

him as part of a national team of hand-picked professionals to study brucellosis transmission

mechanisms in elk and bison in and around Yellowstone. Id. ¶ 11. After reviewing the latest data,

he concluded that “the geographically concentrated wild bison hunt in Beattie Gulch, Montana,

poses an ongoing, unstable, and looming threat to human health and safety for brucellosis-

exposed hunters, employees, property owners, neighbors, and visitors to the Beattie Gulch area.”

Id. ¶ 2, 12.

A bison hunt dispersed over a larger geographic area—or in a different area—would not

generate the same risks. See Summary Report from the [IBMP] Meeting 7 (Aug. 6, 2015)

(“Hunting at the park boundary prevents dispersal in to the rest of the area available for bison

outside the park until hunting concludes.”), Ex. BB. As Dr. Nara explained, the sheer volume of

gut piles in Beattie Gulch, “through a ‘concentration effect’ of biomaterial and the associated

olfactory attractiveness of such material (during its natural decay),” brings “[a]nimal visitors to


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organ piles,” and that “prolong[s] and increase[s] the statistical chances for brucellosis and other

viral and bacterial (tuberculosis) disease transmission to other animals and humans.” Nara Decl.

¶ 17. Every year, raptors and ravens “inevitably pick out some of the rotting offal, land in the

trees on [Ms. Lynn’s] land, and drop some of the toxic carrion.” Lynn Decl. ¶ 32.

In humans, Brucella abortus bacterium causes undulant fever. IBMP EIS xliv. If left

untreated with antibiotics, undulant fever can cause fever, chills, night sweats, body and joint

pain, poor appetite, and weakness. Id. at xliv-xlv; Nara Decl. ¶ 22. It also can inflame brains

(encephalitis), cause lesions on bones and joints, infect the heart’s inner lining (endocarditis),

and cause meningitis; brucellosis kills two percent of people it infects. Nara Decl. ¶ 22. These

looming health risks weigh heavily in favor of an injunction. See Al-Joudi, 406 F. Supp. 2d at 20

(“[C]ourts often find a showing of irreparable harm where the movant’s health is in imminent

danger.”).

3. The Bison Hunt Across the Road from Ms. Lynn’s Driveway Traumatizes Her.

Neighbors also suffer irreparable injury from the invasive, concentrated bison hunting in

their neighborhood. Agency actions can “undeniably” injure a plaintiff who “desire[s] to use or

observe an animal species, even for purely esthetic purposes . . . .” Lujan v. Defs. of Wildlife, 504

U.S. 555, 562-63 (1992); see also City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (“[C]ase

or controversy considerations obviously shade into those determining whether the complaint

states a sound basis for equitable relief . . . .”). The bison slaughter across the road irreparably

injures Neighbors and its members.

Ms. Lynn has taken photography courses at Montana State University, and she feels

“especially honored to be able to photograph [bison] on [her] property.” Lynn Decl. ¶ 5. Instead

of seeing bison at peace in their natural habitat where she can photograph them, the “year-after-

year slaughter has horrified and deeply traumatized [her].” Id. ¶ 29. The hunt irreparably injures


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her desire to photograph bison, in peace, on her land. See Fund for Animals, Inc. v. Clark, 27

F.Supp.2d 8, 14 (D.D.C. 1998) (recognizing irreparable harm when “individual plaintiffs live

near and enjoy the bison . . . enjoy observing, photographing and generally commiserating with

the animals.”); Fund for Animals v. Espy, 814 F.Supp. 142, 151 (D.D.C. 1993).

Ms. Lynn also wants to share her cabins with visitors from around the world who “share with

[her] their cherished memories,” cultures, and ideas. Lynn Decl. ¶¶ 18-19. But “[p]eople come to

see live bison—not dead ones. They do not come to see hunters kill families of bison, young and

old, in front of their eyes.” Id. ¶ 34. Ms. Lynn would still want to come visit Yellowstone even if

she did not possess properties. See id. ¶ 17. Other people who own houses and land nearby make

it feel like its own neighborhood. They go into Yellowstone to take photos, to hike, and to share

meals. Id. ¶ 16. Only stopping the hunt can stop Neighbors’ irreparable injury from seeing the

slaughter, blood on the road, and suffocated fetuses in gut piles strewn across the neighborhood.

4. The Bison Hunt May Cause Ms. Lynn to Sell Her Rental Cabins.

The bison hunt is stopping Ms. Lynn from renting her cabins as winter vacation rentals, so

the annual rental income no longer covers her expenses. Neighbors do not claim Ms. Lynn’s

monetary losses as irreparable harm. Of course, temporary money losses do not normally qualify

as irreparable “because money can usually be recovered from the person to whom it is paid.”

Philip Morris USA, Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia, Circuit Justice, Fifth Circuit)

(citation omitted); Mori v. Int’l. Bhd. of Boilermakers, 454 U.S. 1301, 1303 (1981) (Rehnquist,

Circuit Justice, 9th Cir.) (finding $150,000 loss irreparable). Nonetheless, the annual bison hunt

is causing so much financial stress that Ms. Lynn almost had to sell one rental cabin. Lynn Decl.

¶¶ 48-50. That lost business and lost property right each qualify as irreparable harms. Wis. Gas

Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (“Recoverable monetary loss may constitute

irreparable harm . . . where the loss threatens the very existence of the movant’s business.”);


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Peterson v. D.C. Lottery & Charitable Games Control Bd., No. CIV. A. 94-1643, 1994 WL

413357, at *4 (D.D.C. July 28, 1994) (“It is settled beyond the need for citation . . . that a given

piece of property is considered to be unique, and its loss is always an irreparable injury.”).

The bison hunt prevents Ms. Lynn from renting her cabins as winter vacation rentals from

November through April. Lynn Decl. ¶¶ 39-41. Ms. Lynn rented her cabins fully furnished, and

fully ready-to-occupy during the winter from 2006 through 2013. Id. ¶¶ 38, 42. Those guests

likely enjoyed the only personal car-and-truck winter access to Yellowstone at the Gardiner

entrance. See id. ¶ 43. Ms. Lynn owes a duty of quiet enjoyment to her tenants, so she feels

compelled to tell the potential tenants about the hunt. Id. ¶ 44. That scares most of them away.

Id. ¶ 44. But even when the tenants have assumed the risk of staying there, they have regretted it.

When Ms. Lynn rented the cabin in January 2013 to Tom Frostman and his wife for their

bucket-list “winter in Yellowstone” holiday. Id. ¶ 45. The hunt “spoiled” it. Id. It shocked Mr.

Frostman and his wife so much to see the bullets flying and the bison body parts and blood that it

compelled him to write a letter to the Montana Governor. Id.; id., Ex. A.

More recently, in November 2016 to April 2017, Ms. Lynn rented a cabin to Jort Vanderveen

and Sarah Alexandra Teodorescu, who did not expect the hunt to bother them. Id. ¶ 46. Mr.

Vanderveen had planned to leave early for photography and to come back late; and Ms.

Teodorescu had planned to come and go for work over the winter. Id. One day, Ms. Teodorescu

told Ms. Lynn, Ms. Teodorescu just “stood in the doorway of the cabin and just cried at the

despicable wanton slaughter happening outside her doorway’s view.” Id. Ms. Lynn felt

devastated over having caused that pain. Id.

Despite those experiences, Ms. Lynn continued trying to rent the cabins over the winter to

anyone willing to accept the risk. She advertised them last year, but found no renters, although


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Gardiner citizens “feel desperate for rental housing.” Id. ¶ 41. She tried decreasing the rent, but

still had no success. Id. ¶¶ 41-42. She knows the danger keeps local renters away. Id. ¶ 41.

Renting the cabins as vacation rentals only from May until October, however, no longer covers

the cabins’ annual expenses: booking fees, homeowners’ association fees, utilities, maintenance,

and mortgages. Id. ¶ 36. Ms. Lynn’s bookkeeper warned her of this situation. Id. In past years

when the rent did not cover the expenses, Ms. Lynn had subsidized the rentals with her real-

estate business. Id. ¶ 37. At 76 years old, however, she is struggling to make ends meet because

she has “cut way back on [her] over forty-six years in the real estate industry,” to focus on the

cabin rentals and other opportunities. Id. ¶¶ 4, 50.

As a result of this squeeze, Ms. Lynn almost sold one of her cabins in September 2019. Id. ¶¶

36, 48-50. In August 2019, someone offered to pay cash for Cabin 8. Id. ¶ 48. Ms. Lynn wanted

to leave the cabin to her godson and his wife as part of her estate, because she “know[s] how

much they like visiting Yellowstone, staying at the cabins, [and] fishing on the Yellowstone

River.” Id. ¶ 49. But because Ms. Lynn needed to take care of herself, she started moving

forward. Id. ¶¶ 48-50. Ultimately, the sale fell through. Id. ¶ 50. Ms. Lynn is “doing [her] best to

make ends meet for this winter, but [she] struggle[s] to be able to rob Peter to pay Paul . . . .” Id.

Even if Ms. Lynn could only rent each cabin month-to-month for $1,150 per month from

November to May (instead of renting them as vacation rentals without the hunt), the bison hunt

costs her up to $13,800 every year. See id. ¶¶ 36, 40. That amount could easily tip a small

business into unprofitability, as it is doing here. It risks Ms. Lynn’s ownership of her cabins and


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her rental business. Stopping the winter bison hunt would likely allow her to rent the cabins for

the rest of the winter, and it could save her small business and retirement plans.19

The risk of death or serious bodily injury; the concentrated, gut piles potentially infected with

brucellosis; the aesthetic harms of seeing bison slaughtered; and the loss of Ms. Lynn’s cabin,

together weigh heavily in favor of temporarily stopping the bison hunt in Beattie Gulch, while

the agencies compile the administrative records and the Parties brief this case.

B. The Federal Agencies Will Suffer No Irreparable Injury from Stopping the Hunt.

Against Neighbors’ weighty interests, the Federal Agencies can demonstrate little, if any,

irreparable harm in temporarily stopping the hunt. Any harm they suffer will have resulted from

their own poor planning. If the Federal Agencies had complied with NEPA and analyzed the

environmental impacts of the increasingly concentrated bison hunt in Beattie Gulch, they would

have generated alternatives. See 40 C.F.R. § 1502.14. But the Federal Agencies never completed

that analysis. Congress enacted NEPA for reasons just like this, and the Federal Agencies’ legal

violations undermine their efforts to demonstrate any irreparable harm.

NEPA’s requirements weigh in favor of this Court choosing a temporary remedy from

among the alternatives the Federal Agencies have already analyzed in the IBMP EIS. See

Conservation Nw. v. Sherman, 715 F.3d 1181, 1188 (9th Cir. 2013) (overturning a district court

for entering a permanent consent decree that allowed an agency to make a land management

decision “without having followed statutorily required procedures”). The Forest Service could

shut down Beattie Gulch to hunting, as it has done in parts of that area. Alternately, the Park

19 Ms. Lynn has separately filed an inverse condemnation case in the United States Court of Federal Claims for just compensation under the Fifth Amendment. She could obtain a legal remedy there. See Hurley v. Kincaid, 285 U.S. 95, 104-105 (1932). That remedy, however, would extend only to the monetary element of irreparable injury. Remedies at law would not cure them, so only this Court’s equitable authority can. See Marbury v. Madison, 5 U.S. 137, 147 (1803) (“every right, when withheld, must have a remedy, and every injury its proper redress.”).


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Service could allow some bison outside of Yellowstone, without allowing hunting, as the IBMP

ROD initially approved in 2000. See IBMP ROD 53. Neither step would undermine either

agency’s missions.

C. The Public Interest Weighs in Favor of Stopping the Bison Hunt in Beattie Gulch.

Instead of undermining the agencies’ missions, Congress issued clear policy directions, and

they weigh in favor of temporarily stopping the bison hunt. Congress assigned all agencies the

duty “to foster and promote the general welfare, to create and maintain conditions under which

man and nature can exist in productive harmony, and fulfill the social, economic, and other

requirements of present and future generations of Americans.” 42 U.S.C. § 4331. Courts cannot,

of course, “override Congress’ policy choice, articulated in a statute,” and they cannot exercise

their “discretion” to “reject the balance that Congress has struck in a statute.” United States v.

Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497 (2001). Here, both alternatives, analyzed

in the 2000 IBMP EIS that stop the hunting, advance Congress’s policy goals.

The Federal Agencies never considered public safety of the concentrated bison hunt at

Beattie Gulch, and that weighs heavily in favor of stopping it. Aside from dangers to the

neighbors, Montana Wildlife also found dangers to the hunters, themselves. A stray bullet could

hit a bystander or family member. Property owners, neighbors, or visitors could die in their

living rooms from any single hunter’s mistake or failure of judgment.

Separately, just as brucellosis in the bison gut piles presents a looming threat to Neighbors

and its members, it also threatens hunters, landowners, federal employees, state employees, and

guests. See Nara Decl. ¶ 15-23. Experience demonstrates that grave risk. One spring about four

or five years ago, a young woman in her 20s, heedless of the risks to her health, decided to make

purses out of raw bison guts she found in Beattie Gulch. Lynn Decl. ¶ 35. This story exemplifies

one of the unforeseeable activities that make the gut piles an “ongoing, understudied,


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uncontrolled threat to humans . . . occupying [Beattie Gulch] for whatever reasons . . . .” See

Nara Decl. ¶ 21. The public interest weighs in favor of averting that risk.

To be clear, allowing hunting for recreation carries no weight in favor of the public interest.

“Restrictions on human intervention are not usually irreparable in the sense required for

injunctive relief.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1125 (9th Cir. 2002), abrogated

on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); Am.

Motorcyclist Ass’n v. Watt, 714 F.2d 962, 967 (9th Cir. 1983) (“reduced recreation and

development opportunities . . . pos[e] no danger of irreparable injury to the environment or to the

public interest.”). Instead, the public interest weighs heavily in favor of temporarily stopping the

bison hunt while the agencies compile their administrative records and the Parties brief the case.

See 42 U.S.C. § 4331(2) (directing agencies to “assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing surroundings”).

CONCLUSION

Neighbors has demonstrated it is likely to succeed on the merits of its Yellowstone

Management Act, Forest Service Organic Act, and NEPA claims. It has demonstrated that its

members will likely suffer irreparable injury without an injunction, and it has shown that the

Park Service and the Forest Service will not suffer irreparable injury from an injunction. Public

health and safety weigh in favor of stopping the concentrated bison hunt. For these reasons, the

balance of the equities weighs heavily in favor of stopping it while the agencies compile their

administrative records and the agencies brief this case on the merits.


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Dated October 21, 2019,

MATTHEW D. THURLOW Baker & Hostetler LLP 1050 Connecticut Avenue, NW Washington, DC 20036 (202) 861-1681 [email protected] _____/s/ Jared S. Pettinato_________________ JARED S. PETTINATO, DC Bar No. 496901 Jared Pettinato Law Offices 3416 13th St. NW, # 1 Washington, DC 20010 (406) 314-3247 [email protected] Attorneys for Plaintiffs Of Counsel: ZOE STEINBERG Baker & Hostetler LLP 11601 Wilshire Blvd. Los Angeles, CA 90025 [email protected]


case 1:19-cv-00128-spw document 4-1 filed 10/23/19 page 1

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