jeffrey clark assistant attorney general jennifer a ... · jeffrey clark . assistant attorney...

JEFFREY CLARK Assistant Attorney General JENNIFER A. NAJJAR, CO Bar # 50494 Trial Attorney Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Telephone: (202) 598-9032 Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

COTTONWOOD ENVIRONMENTAL LAW CENTER,

Plaintiff, v. RYAN ZINKE, in his official capacity as Secretary of the Interior; STEVE BULLOCK, in his official capacity as Governor of the State of Montana; DAN WENK, in his official capacity as Park Superintendent, Yellowstone National Park; LEANNE MARTEN, in her official capacity as Regional Forester, U.S. Forest Service; NATIONAL PARK SERVICE; U.S. FOREST SERVICE; USDA-ANIMAL & PLANT HEALTH INSPECTION SERVICE,

Defendants. _____________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Case No. CV 18-12-BU-SEH FEDERAL DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

Case 2:18-cv-00012-SEH Document 48 Filed 10/12/18 of 29

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TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................... 1

II BACKGROUND ............................................................................................ 3

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

1. The Administrative Procedure Act ............................................. 3

2. National Environmental Policy Act............................................ 4

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

1. Bison Management ..................................................................... 5

III. STANDARD OF REVIEW ............................................................................ 8

A. Motion to Dismiss Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction ................................................................................ 8

B. Motion to Dismiss Under Rule 12(b)(6) for Failure to State a Claim ..................................................................................................... 9

IV. ARGUMENT .................................................................................................. 9

A. Plaintiff’s Complaint should be dismissed because Plaintiff has failed to demonstrate constitutional standing. .................................... 10

1. Plaintiff fails to establish it suffered an injury. ........................ 11

2. Plaintiff failed to demonstrate that the alleged injury, risk to human health, is connected to the exercise of an American Indian tribe’s right to hunt. ...................................... 14

3. Plaintiff cannot show how the relief sought in this action redresses the asserted injury. .................................................... 16

B. Plaintiff lacks Prudential Standing under the Administrative Procedure Act. .................................................................................... 17

C. Plaintiff’s claim should be dismissed because Plaintiff failed to state a claim upon which relief may be granted.................................. 19

V. CONCLUSION ............................................................................................. 22


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TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 9, 19

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005) ......................................................................... 18, 19

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 9, 19

Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................. 10, 14, 17

Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002) ............................................................................... 9

Cedars–Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972 (9th Cir. 2007) ................................................................................. 9

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) ............................................................................... 17

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ............................................................................................. 11

Douglas Cty. v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) ............................................................................... 17

Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998) ............................................................................................... 10

Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) ................................................................................. 3

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977) ............................................................................................. 11

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ............................................................................................... 8

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................................... 8, 10, 16


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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ............................................................................................. 18

Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ........................................................................................... 2, 5

Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) ............................................................................................. 18

Navarro v. Block, 250 F.3d 729 (9th Cir.2001) .................................................................................. 9

Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) ............................................................................................. 3, 4

Price Rd. Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505 (9th Cir. 1997) ............................................................................... 5

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078 (9th Cir. 2005) ............................................................................. 18

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................... 4

San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996) ............................................................................... 11

Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir.1988) .............................................................................. 17

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ........................................................................................... 8, 10

Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) ............................................................................... 8

U.S. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ............................................................................................... 4

W. Watersheds Project et al. v. Salazar, et al., 766 F. Supp. 2d 1095 (D. Mont. 2011) ............................................................ 5, 15

Warren v. Dist. of Columbia, 353 F.3d 36 (D.C. Cir. 2004) ................................................................................. 9


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Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................................... 9

Statutes

5 U.S.C. §§ 701–706 ................................................................................................. 3

5 U.S.C. § 704 ........................................................................................................... 3

5 U.S.C. § 706(2)(A) ................................................................................................. 4

16 U.S.C. § 26 ........................................................................................................... 7

28 U.S.C. § 1361 ..................................................................................................... 19

28 U.S.C. § 2201 ..................................................................................................... 19

28 U.S.C. § 2401(a) ................................................................................................... 2

42 U.S.C. § 1983 ..................................................................................................... 19

42 U.S.C. § 4321 ....................................................................................................... 4

42 U.S.C. § 4332 ..................................................................................................... 19

42 U.S.C. § 4332(2)(C) ............................................................................................. 4

Mont. Code Ann. § 87-1-216(2)(c) ........................................................................... 7

Mont. Code Ann. § 87-2-730 .................................................................................... 7

Mont. Code Ann. § 87-2-732 .................................................................................. 20

Regulations

40 C.F.R. § 1501.1(c) ................................................................................................ 4

40 C.F.R. § 1502.9(c)(1) ......................................................................................... 20

40 C.F.R. § 1502.9(c)(1)(ii) .................................................................................... 21

40 C.F.R. § 1505.2 .................................................................................................... 4

Other Authorities

Adjustments to 2006-2007 Interagency Bison Management Plan Operations Procedures, Interagency Bison Management Plan (Nov. 20, 2006), http://ibmp.info/Library/AdaptiveMgmt/IBMP_Adaptive%20Mgt%20Changes%202006%20with%20signatu res.pdf. ................................................................... 21


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Director of Mont. Fish, Wildlife, & Parks, Decision Notice: Bison Hunting, Interagency Bison Management Plan, http://www.ibmp.info/Library/Hunt/4%20-%20Hunt%202%20ROD.pdf ................................................................................. 7

Final Bison Envtl. Assessment, Mont. Fish, Wildlife & Parks (September 30, 2004), http://www.ibmp.info/Library/Hunt/4%20-%20Hunt%201%20EA.pdf, April 21, 2018) ....................................................................................................... 7

Geremia C., R. Wallen, and P. J. White, Status Report on the Yellowstone Bison Population, Interagency Bison Management Plan (September 2017), http://ibmp.info/Library/OpsPlans/2017_StatusYellowstoneBisonPopulation_Sep2017_Final.pdf. .................................................................................................. 21

PJ White, Rick L. Wallen, and David E. Hallac, Yellowstone Bison: Conserving an American Icon in Modern Society, National Park Service, https://www.nps.gov/yell/learn/nature/upload/Yellowstone_Bison_ForWeb.pdf . 7


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I. INTRODUCTION

Plaintiff Cottonwood Environmental Law Center (“Plaintiff”) brings suit

alleging that the National Park Service, the United States Forest Service, and the

Animal and Plant Health Inspection Service (collectively, the “Federal

Defendants”) and Governor Steve Bullock (“State Defendant”), implement the

2000 Interagency Bison Management Plan (“IBMP”) in a way that endangers

public safety and puts hunters at risk. Plaintiff argues that Federal Defendants

must supplement their National Environmental Policy Act (“NEPA”) analysis to

address purportedly significant “new” information regarding the environmental

impacts of the IBMP. Specifically, Plaintiff claims that the Final Environmental

Impact Statement (“FEIS”) of the IBMP should be supplemented based on (1) an

additional American Indian tribe’s exercise of its treaty right to join the annual

bison hunt, (2) “new safety concerns” from hazing operations, (3) the publication

of a 2017 National Academy of Sciences study on brucellosis in the Greater

Yellowstone Area, and (4) statements from a National Park Service (“NPS”)

representative noting that 4,200 bison could be the population objective for the

Park. ECF No. 33-1, 8-11.

Plaintiff’s Complaint should be dismissed because Plaintiff lacks

constitutional and prudential standing, and Plaintiff fails to state a claim upon

which relief could be granted. Plaintiff does not satisfy any element of Article III


standing. First, Plaintiff’s alleged injuries—theoretical safety concerns—are

neither concrete and particularized, nor imminent. Plaintiff’s alleged injury stems

from the annual bison hunt, an activity which the Montana Fish, Wildlife and Parks

(“MFWP”)1 and each treaty tribe2 are responsible for authorizing under the IBMP.

Ex. A. Plaintiff fails to show the alleged injury was traceable to Federal

Defendants because its allegations are based on the actions of third parties.

Finally, Plaintiff does not demonstrate that this Court can redress its claim of

alleged injury because Federal Defendants do not have control over the number or

concentration of hunters participating in the annual hunt, and conducting additional

NEPA analysis will not change that. Plaintiff also fails to establish prudential

standing because the theoretical safety concerns it alleges are far removed from the

environmental and informational interests protected by NEPA.

Plaintiff also fails to state a claim upon which relief could be granted.

Plaintiff’s argument is brought under NEPA, a statute which imposes procedural

rather than substantive requirements to which federal agencies must adhere.

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989); see also 28 U.S.C. §

1 Montana Fish, Wildlife and Parks “has the primary responsibility regarding the public bison hunt.” Ex. A. 2 The Confederated Salish and Kootenai Tribes, the Blackfeet Nation, Nez Perce Tribe, Shoshone-Bannock Tribes, the Confederated Tribes of the Umatilla Reservation, and the Confederated Tribes and Bands of the Yakama Nation “are all treaty tribes that have reserved aboriginal hunting rights on open and unclaimed lands found within the state of Montana.” Ex. A.

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2401(a). Here, Plaintiff fails to demonstrate why Federal Defendants need to

address purportedly “new” information.

For the foregoing reasons as explained in detail below, this case should be

dismissed for lack of jurisdiction and for the failure to state a claim for which relief

can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

II. BACKGROUND

A. Legal Background

1. The Administrative Procedure Act

Plaintiff relies on the waiver of sovereign immunity in the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701–706, for its claims against the Federal

Defendants. The APA provides that “[a]gency action made reviewable by statute

and final agency action for which there is no other adequate remedy in a court is

subject to judicial review.” Id. at § 704.

Where a plaintiff seeks to “compel agency action unlawfully withheld or

unreasonably delayed” under § 706(1), plaintiff bears the burden of establishing

that the action they seek is mandatory, discrete, ministerial, and “so clearly set

forth that it could traditionally have been enforced through a writ of mandamus.”

Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010)

(citing Norton v. S. Utah Wilderness All., 542 U.S. 55, 62-63 (2004)). A claim

under § 706(1) “can proceed only where … an agency failed to take a discrete


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agency action that it is required to take.” Norton, 542 U.S. at 64. A reviewing

court may not set aside an agency’s decision to forgo preparation or

supplementation of an environmental impact statement unless the action is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A).

2. National Environmental Policy Act

Congress enacted NEPA to foster environmentally informed decision-

making by federal agencies. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1(c); Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); U.S. Dep’t of

Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004). NEPA promotes these goals by

prescribing the necessary process through which an agency must make its

decisions, rather than by mandating particular substantive results. Methow Valley

Citizens Council, 490 U.S. at 350.

Under NEPA, federal agencies prepare reports, such as Environmental

Assessments (“EA”) and Environmental Impact Statements (“EIS”), on “major

Federal actions significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(2)(C). For matters requiring an EIS, these regulations require an

agency to prepare a “concise public record of decision” (“ROD”) that sets forth the

decision and summarizes the analysis used to reach the decision. 40 C.F.R.

§ 1505.2. Once an agency has prepared an EA or EIS, further analysis is only


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required if the agency makes substantial changes in the proposed action relevant to

environmental concerns, or there is significant new information arises that will

affect the quality of the environment in a manner or to a degree not already

considered and there is a major federal action yet to occur. Marsh, 490 U.S. at

373-74. NEPA supplementation is not required for every change to a project, and

where an agency reviews the relevant factors and determines that supplementation

is not necessary, a court “must defer to that informed discretion.” Price Rd.

Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505, 1509-12 (9th Cir.

1997) (citations and internal quotations omitted).

B. Factual Background

1. Bison Management

Federal Defendants manage the Yellowstone bison population according to

the IBMP. Ex. A. The IBMP was developed as part of a court-mediated

settlement in 2000 and signed by the Governor of Montana, and the Secretaries of

the Department of the Interior and the Department of Agriculture.3 W. Watersheds

Project. v. Salazar, 766 F. Supp. 2d 1095, 1105 (D. Mont. 2011), aff’d in part, 494

F. Appx. 740 (9th Cir. 2012). As the IBMP notes, “[b]ison are an essential

component of Yellowstone National Park because they contribute to the biological,

ecological, cultural, and aesthetic purposes of the park.” IBMP 2. Yellowstone

3 The named Defendants are some of the signatories to the IBMP.


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National Park, however, is not a self-contained ecosystem and concerns over the

transmission of brucellosis to cattle from bison migrating out of the Park into

Montana led to litigation between the state and NPS and other federal agencies.

IBMP 3-4.

The long-term management of bison has been complicated by two

interrelated factors: (1) bison roam across different jurisdictions and (2) federal and

state agencies have different goals and responsibilities as they relate to the bison.

As the ROD noted:

When bison leave Yellowstone National Park and enter Montana, the management responsibilities and authorities change. Within the boundaries of Yellowstone National Park, the Secretary of the Interior has exclusive jurisdiction to manage the park’s natural resources, including the bison. Outside the park the State of Montana has the management authority over the bison. When the bison are on national forest system lands, the U.S. Forest Service has responsibilities under federal laws to provide habitat for the bison, a native species. Federal law requires APHIS to control and prevent the spread of communicable and contagious diseases of livestock. Because of these mandates, the agencies recognize that a coordinated, cooperative management regime would provide consistency and reliability to the process. Even so, the agencies recognized that their diverse mandates would fuel public discourse and criticism of agency action. By necessity, due to limited authorities, each agency had to reconcile their goals, such as providing for a free-ranging bison herd, with other goals such as reducing the risk of transmission of brucellosis from bison to cattle.

IBMP ROD, 6.4

4 Bovine brucellosis is a disease caused by the bacteria Brucella abortus that can cause abortions, still births, and premature live births in infected bison, elk, and cattle. Yellowstone Bison: Conserving an American Icon in Modern Society, PJ White, Rick L. Wallen, and David E. Hallac (2015) at 20. (https://www.nps.gov/yell/learn/nature/upload/Yellowstone_Bison_ForWeb.pdf, April 21, 2018).


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Both the FEIS and ROD explicitly provided for “adaptive management”

changes to the IBMP, meaning that the agencies are authorized to agree to adjust

elements of the IBMP based on research and new information. IBMP ROD, 32.

After the IBMP was finalized, the Montana Legislature authorized bison

hunting outside of Yellowstone National Park.5 See e.g. MONT. CODE. ANN.

(“MCA”) §§ 87-1-216(2)(c) (Wild Buffalo or bison as species in need of

management – policy – department duties) and 87-2-730 (Special Wild Buffalo

License – Regulation). Accordingly, hunters from six different tribes and the State

of Montana participate in the annual hunt each year. Ex. A. Each treaty tribe and

MFWP “addresses harvest management through different measures unique to their

own concerns and enforces regulations for their respective hunters by sending

enforcement officers to the hunting areas.” Id. Importantly, hunting is specifically

prohibited on NPS land. 16 U.S.C. § 26 (providing, in part, that “[a]ll hunting, or

the killing, wounding, or capturing at any time of any bird or wild animal, except

dangerous animals, when it is necessary to prevent them from destroying human

life or inflicting an injury, is prohibited within the limits of said park.”). Thus, the

5 Before the allowance of hunting outside Yellowstone National Park was incorporated into the IBMP as an adaptive management adjustment, the State of Montana again analyzed potential environmental impacts of such hunting under applicable State law. See Final Bison Envtl. Assessment, Mont. Fish, Wildlife & Parks (September 30, 2004) (http://www.ibmp.info/Library/Hunt/4%20-%20Hunt%201%20EA.pdf, April 21, 2018). The Director of Mont. Fish, Wildlife & Parks later issued a Decision Notice authorizing the hunt. http://www.ibmp.info/Library/Hunt/4%20-%20Hunt%202%20ROD.pdf, April 21, 2018).


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hunt is occurring outside of NPS land, on lands open to hunting, under the

jurisdictional authority of the state of Montana and the respective tribes.

III. STANDARD OF REVIEW

A. Motion to Dismiss Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Jurisdiction is a threshold issue that must be addressed before considering

the merits of a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–96,

(1998). Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim

for lack of subject matter jurisdiction. The burden of proving subject matter

jurisdiction rests with plaintiff, the party invoking the federal court’s jurisdiction.

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Federal courts are

courts of limited jurisdiction, and are presumed to lack jurisdiction unless a

plaintiff establishes its existence. Stock W., Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

The elements of standing are “an indispensable part of the plaintiff’s case,”

and “each element must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). At the pleading stage, a plaintiff’s factual allegations must be

more than merely conclusory legal statements to the effect that standing exists or

that the plaintiff was injured. Id. As the Supreme Court has stated, “[i]t is the

responsibility of the complainant clearly to allege facts demonstrating that he is a


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proper party to invoke judicial resolution of the dispute and the exercise of the

court’s remedial powers.” Warth v. Seldin, 422 U.S. 490, 518 (1975).

B. Motion to Dismiss Under Rule 12(b)(6) for Failure to State a Claim

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests

the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th

Cir.2001). A court considering a Rule 12(b)(6) motion presumes the factual

allegations of the complaint to be true. Cedars–Sanai Med. Ctr. v. Nat’l League of

Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks and citation omitted); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 561–62 (2007). The court need not accept as true

inferences unsupported by facts set out in the complaint or legal conclusions cast

as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir.

2004); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555).

IV. ARGUMENT


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Plaintiff and its members fail to demonstrate constitutional and prudential

standing. As such, its claims should be dismissed for lack of jurisdiction. Plaintiff

also fails to state a claim upon which relief could be granted.

A. Plaintiff’s Complaint should be dismissed because Plaintiff has failed to demonstrate constitutional standing.

Standing is an “irreducible constitutional minimum.” Lujan, 504 U.S. at

560. To satisfy the requirements for standing under Article III of the U.S.

Constitution, plaintiffs must show that: (1) they have suffered “injury in fact;” (2)

the injury is “fairly traceable” to the Federal Defendants’ actions; and, (3) a

favorable judicial ruling will “likely” redress plaintiff’s injury. Fed. Election

Comm’n v. Akins, 524 U.S. 11, 18 (1998); Bennett v. Spear, 520 U.S. 154, 161

(1997); Lujan, 504 U.S. at 560-61. “This triad of injury in fact, causation, and

redressability constitutes the core of Article III’s case-or-controversy requirement,

and the party invoking federal jurisdiction bears the burden of establishing its

existence.” Steel Co., 523 U.S. at 103-04 (citations omitted).

Plaintiff does not have standing to bring this case because neither the

organization nor any of its members has presented an injury that is concrete,

particularized, and actual or imminent; fairly traceable to Federal Defendants’

challenged action; or that can be redressed by a favorable ruling. See Lujan 504

U.S. at 560-61; see also Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,

343 (1977).


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1. Plaintiff fails to establish it suffered an injury.

To establish Article III standing, the plaintiff “must have suffered an injury

in fact”—an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) “actual or imminent, as opposed to conjectural or

hypothetical[.]” San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126

(9th Cir. 1996) (internal quotations omitted). Any future “threatened injury must

be certainly impending to constitute injury in fact[;] allegations of possible future

injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, (2013)

(internal quotations omitted).

Plaintiff fails to show an injury that its members actually suffered or are

likely to suffer as a result of the challenged federal action. Plaintiff offers only an

unsupported, subjective concern that the addition of a Native American tribe’s

exercise of treaty rights will result in increased danger and an alleged procedural

deficiency. See, e.g., ECF No. 33-1, 8. Plaintiff does not explain how the presence

of an additional Native American tribe results in a specific and concrete injury to

Plaintiff or its members.

Plaintiff does not include any allegations that could show a concrete or

imminent injury related to Plaintiff’s or its members’ personal safety. ECF No. 33-

1, 8. Rather, Plaintiff merely posits general allegations that its members could be

harmed. Id. Plaintiff fails to demonstrate how an additional Native American tribe


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executing its right to hunt actually results in a more crowded hunting area that

increases the danger to human health. Plaintiff has not established, or even

alleged, that it has actually suffered or is likely to suffer an injury as a result of the

challenged action. Such speculative fears, particularly ones that did not

materialize, do not establish “concrete and particularized” and “actual or

imminent” injuries.

Plaintiff also asserts a risk from hazing operations, but does so without

specifying how the hazing directly affects or poses a risk to Plaintiff. Therefore,

Plaintiff fails to allege a concrete and particularized injury.

Plaintiff also argues that the Federal Defendants’ failure to supplement its

NEPA analysis supporting the IBMP in light of the publication of the National

Academy of Sciences study on brucellosis in 2017 led to a procedural injury. ECF

No. 33-1, 10. But this alleged injury is, again, not “concrete and particularized”

because the study does not undermine the rationale supporting the IBMP. The

IBMP was adopted in its current form despite the fact that the vectors of

brucellosis transmission were disputed. The FEIS expressly noted that “[s]cientists

and researchers disagree on even some of the most basic factors influencing the

risk of transmission.” IBMP Final Environmental Impact Statement, Vol. 1, at ix-

x.6 One study suggesting that transmission may occur more through elk than bison

6 Available at http://www.ibmp.info/Library/FEIS_finalEIS/FEIS_volume1_132Mb.PDF.


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does not invalidate the State’s or the ranchers’ concerns, or the scientific bases

therefore. The 2017 National Academy study freely acknowledges Yellowstone

National Park bison still carry the brucellosis bacteria and disease, and therefore

continue to pose a threat to domestic cattle. Elk may be a larger transmission

vector simply because they have not historically been isolated from cattle, as the

wild Yellowstone Park bison have been. This would reinforce the need to maintain

the separation between bison and cattle, and augur directly against the relief

Plaintiff seeks.

Furthermore, Plaintiff fails to account for the fact that the IBMP

incorporates a multitude of goals as they relate to bison, including, among other

things, (1) maintaining a viable population of wild bison; (2) preventing the spread

of brucellosis from bison to livestock; and (3) providing for public safety and the

protection of private property. IBMP ROD at 8.7 Thus, even if the 2017 National

Academy of Sciences study clearly concluded that bison posed no risk of spreading

brucellosis to cattle (it does not), it would not change the other goals and means

governing bison management under the IBMP. Managing Yellowstone bison in

accordance with the IBMP will still promote a viable population, and will still

7 Available at http://www.ibmp.info/Library/IBMP_FED_ROD/1%20-%20IBMP%20EIS%20Record%20of%20Decision.pdf.


14

promote public safety in Gardiner, Paradise Valley, and surrounding populated

areas.

Lastly, Plaintiff argues that Federal Defendants have violated NEPA because

the NPS representatives “believe that 4,200 could be the new [bison] population

objective,” and this constitutes significant new information for which supplemental

NEPA analysis is required. ECF. No. 33-1, 11 (emphasis added). Even if a federal

defendant noted that 4,200 bison “could be” the new objective, Plaintiff fails to

allege the agency has actually adopted such an objective or made a determination

to adopt such an objective in the future. In lieu of final agency action definitively

adopting a new bison population goal, there is no potential injury directly traceable

to agency action. In sum, Plaintiff has not shown how its speculative fears, which

did not materialize, establish “concrete and particularized” and “actual or

imminent” injuries.

2. Plaintiff failed to demonstrate that the alleged injury, risk to human health, is connected to the exercise of an American Indian tribe’s right to hunt.

Plaintiff must also demonstrate that there is a causal connection between the

injury and the challenged conduct. The injury has to be “fairly . . . trace[able] to

the challenged action of the defendant, and not . . . th[e] result [of] the independent

action of some third party not before the court.” Bennett, 520 U.S. at 167.

Plaintiff does not demonstrate or explain how Federal Defendants’ failure to


15

supplement its NEPA analysis results in increased risk to human safety in a bison

hunt regulated by MFWP and a treaty tribe invoking its right to hunt. Plaintiff also

seeks to stop Federal Defendants from hazing bison, but there is no connection

between the relief Plaintiff is seeking and its asserted injury.

The IBMP was hammered out after years of multi-party negotiations.8 The

IBMP was developed as part of a court-mediated settlement in 2000 and was

signed by the Governor of Montana and the Secretaries of the Department of

Agriculture and the Department of the Interior. W. Watersheds Project v. Salazar,

766 F. Supp. 2d 1095 (D. Mont. 2011). Different sovereigns have different powers

pertaining to bison management, in accordance with their sovereign powers and

jurisdictions. Tribal bison hunts are the product of ancestral hunting rights, and

agreements between various tribes and the State of Montana.

Plaintiff claims that the Federal Defendants are obligated to conduct

supplemental NEPA analysis based on actions of third parties, namely the

participants in the annual bison hunt. ECF No. 33-1. Here, Plaintiff’s alleged

injury is based on third parties’ actions because MFWP and the treaty tribes

regulate hunting. Accordingly, it is really the “independent action of some third

party not before the court” of which the Plaintiff complains. Lujan, 504 U.S. at

8 Interagency Bison Management Plan, http://ibmp.info/ (“After more than 10 years of negotiations, the [IBMP] was adopted in 2000.”).


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560–61. While NEPA applies to Federal Defendants as a general rule, the issue at

the heart of this legal action—regulating the annual bison hunt—is outside of

Federal Defendants’ jurisdiction.

With respect to hazing, Plaintiff fails to allege any harms associated with

any specific hazing operation. Plaintiff is missing the link between the challenged

action and a threat to a concrete interest. As a result, Plaintiff has failed to show

how these actions are fairly traceable to the Federal Defendants.

3. Plaintiff cannot show how the relief sought in this action redresses the asserted injury.

Plaintiff fails to show that it is “likely,” as opposed to merely

“speculative,” that the injury will be “redressed by a favorable decision.” Lujan,

504 U.S. at 560-561 (citations omitted). As previously mentioned, Federal

Defendants do not regulate the annual bison hunt. As such, Federal Defendants

do not issue bison hunt permits or control the number or concentration of hunters.

Instead, MFWP and the treaty tribes authorize hunting permits. IBMP ROD, 6.

With respect to the NPS, the NPS does not allow hunting on its lands and does

not regulate hunting outside of its jurisdiction. The Forest Service “has

responsibilities under federal laws to provide habitat for bison.” IBMP ROD, 6.

Federal law only requires “APHIS to control and prevent the spread of

communicable and contagious diseases of livestock.” Id. Federal Defendants,

thus, do not regulate hunting under the IBMP.


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A favorable decision against Federal Defendants therefore will not give the

Plaintiff the relief it seeks. Accordingly, Plaintiff’s Complaint is devoid of the

necessary allegations to establish constitutional standing to bring this action and

sustain a claim. This Court should dismiss Plaintiff’s Complaint.

B. Plaintiff lacks prudential standing under the Administrative Procedure Act.

Because NEPA does not authorize a private right of action, persons

aggrieved by an agency’s alleged failure to comply with NEPA must seek relief

under the APA’s provisions for judicial review of agency action. Sierra Club v.

Penfold, 857 F.2d 1307, 1315 (9th Cir.1988); Citizens for Better Forestry v. U.S.

Dep’t of Agric., 341 F.3d 961, 976 (9th Cir. 2003). One seeking review under the

APA must not only meet the usual standing requirements set forth in Article III of

the Constitution, but must also meet additional prudential requirements for

standing. Spear, 520 U.S. at 162. To demonstrate prudential standing on an APA

claim, the plaintiff must show that (1) it has been adversely affected by a final

agency action, and (2) its injury falls within the zone of interests protected by the

substantive statute it claims was violated. Douglas Cty. v. Babbitt, 48 F.3d 1495,

1499 (9th Cir. 1995).

In the context of a NEPA claim, plaintiffs must show a connection between

themselves and projected harm or injury to the environment. Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 885 (1990); Ashley Creek Phosphate Co. v. Norton,


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420 F.3d 934, 940 (9th Cir. 2005) (“We have long described the zone of interests

that NEPA protects as being environmental.”); Ranchers Cattlemen Action Legal

Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1103

(9th Cir. 2005), as amended (Aug. 17, 2005) (Thus, “NEPA is concerned with

harm to the physical environment: ‘If a harm does not have a sufficiently close

connection to the physical environment, NEPA does not apply.’”).

Here, Plaintiff’s alleged injury is to human safety, but that is not connected

to NEPA, which concerns itself with harm to the environment. See Metro. Edison

Co. v. People Against Nuclear Energy, 460 U.S. 766, 775-79 (1983) (holding that

agency was not required to consider potential health injuries caused by risk of an

accident in NEPA analysis: “[i]f a harm does not have a sufficiently close

connection to the physical environment, NEPA does not apply”); see also

Ranchers Cattlemen, 415 F.3d at 1103-04 (“While it is true that NEPA contains

references to human health in its statement of policy . . . as the Supreme Court has

explained, those references are to the statute’s goals, not its means . . . Here,

[Plaintiff] has failed to show any relationship between risks to human health and

environmental harms.”).

Plaintiff does not allege that Federal Defendants alleged failure to prepare a

supplemental EIS harms the physical environment. Instead, Plaintiff alleges

theoretical injuries to its members’ safety. These alleged injuries do not fall within


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NEPA’s zone of interests. Accordingly, Plaintiff lacks prudential standing to

assert this claim under NEPA.

While Plaintiff seeks an order in the nature of mandamus directing Federal

Defendants to perform Supplemental NEPA analysis, 28 U.S.C. § 1361,

declaration of its rights under NEPA, 28 U.S.C. § 2201, and that Federal

Defendants be held liable under 42 U.S.C. § 1983, as explained above, Plaintiff

failed to establish sufficient constitutional and prudential standing—an irreducible

minimum— to bring a claim. Ashley Creek Phosphate Co. v. Norton, 420 F.3d

934, 937 (9th Cir. 2005); see also ECF No. 33-1. And Plaintiff also failed to

establish that the Federal Defendants have a nondiscretionary duty required by

NEPA. 42 U.S.C.A. § 4332. As such, Plaintiff fails to establish jurisdiction.

C. Plaintiff’s claim should be dismissed because Plaintiff failed to state a claim upon which relief may be granted.

Even if Plaintiff established standing, Plaintiff fails to state a claim upon

which relief may be granted. Plaintiff’s allegations are “threadbare” and

inadequate, but even if they are accepted at face value, they fail to state a plausible

claim against the federal defendants. . Iqbal, 556 U.S. at 678; Twombly, 550 U.S.

at 555, 561–62. Plaintiff argues that Federal Defendants should have prepared

supplemental analysis for the IBMP because (1) an additional American Indian

Tribe submitted a Notice of Intent to hunt, (2) alleged “new safety concerns” from

hazing operations, and, (3) the publication of a 2017study on brucellosis in the


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Greater Yellowstone Area, and (4) statements by a NPS representative noting that

4,200 bison could be the population objective. ECF No. 33-1. Yet, supplemental

NEPA analysis is only required where an agency “makes substantial changes in the

proposed action that are relevant to environmental concerns” or where “there, are

significant new circumstances or information relevant to environmental concerns

and bearing on the proposed project.” 40 C.F.R. 1502.9(c)(1). Neither of these

conditions are satisfied here.

First, Native American bison hunts are not “new information.” To the

contrary, the IBMP expressly considered and encouraged Native American tribes

to invoke their right to participate in the annual bison hunt in the 2000 IBMP EIS.

See MCA § 87-2-732 (Allocation of Wild Buffalo Licenses To Tribes for

Traditional Purposes). Moreover, the allowance of bison hunts outside of

Yellowstone National Park was integrated into the IBMP with adaptive

management adjustments in 2005 and 2008. Second, even assuming Plaintiff’s

allegation is true and another Tribe will join the hunt, Plaintiff does not plausibly

demonstrate how the hunt will be more dangerous. The State’s requires Tribes

exercising ancestral hunting rights to coordinate with MFWP personnel to ensure

the safety of all participating Tribes. See January 2018 Blackfeet authorization

letter, Exhibit B.


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Lastly, Plaintiff does not allege any environmental concerns. NEPA

imposes no free-standing obligation on the Federal Defendants to conduct an

environmental analysis divorced from a proposed “major Federal action.” 40

C.F.R. 1502.9(c)(1)(ii).

Plaintiff also fails to state a claim in connection with the statement that

4,200 could be a new population goal. The IBMP was adjusted in 2006 to clarify

that “a population of 3,000 bison is defined as a population indicator to guide

implementation of risk management activities, and is not a target for deliberate

population adjustment.” See Adjustments to 2006-2007 Interagency Bison

Management Plan Operations Procedures, November 20, 2006.9 Between 2001

and 2017, bison numbers have varied anywhere between 2,900 and 5,500. See

Geremia, C., R. Wallen, and P. J. White. 2017. Status Report on the Yellowstone

Bison Population, September 2017.10 Moreover, the IBMP was not amended and

the signatories to the IBMP are allowed to freely discuss potential improvements to

the IBMP without fear of triggering supplemental NEPA analysis. Thus, Plaintiff

fails to establish that the alleged action (discussing the possibility of a new

population goal) is factually or legally significant or requires supplemental NEPA

analysis. As a result, Plaintiff fails to state a claim.

9 http://ibmp.info/Library/AdaptiveMgmt/IBMP_Adaptive%20Mgt%20Changes%202006%20with%20signatu res.pdf. 10 http://ibmp.info/Library/OpsPlans/2017_StatusYellowstoneBisonPopulation_Sep2017_Final.pdf.


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V. CONCLUSION

Plaintiff failed to establish constitutional or prudential standing with its bare

allegations of theoretical injuries to human safety. Plaintiff also failed to state a

claim upon which relief can be granted. For the reasons stated above, this Court

should dismiss Plaintiff’s complaint.

Respectfully submitted this 12 day of October, 2018.

JEFFREY CLARK

Assistant Attorney General

/s/ Jennifer A. Najjar JENNIFER A. NAJJAR CO Bar No. 50494 Trial Attorney U.S. Department of Justice Environment & Natural Resources Division, NRS P.O. Box 7611 Washington, D.C. 20044-7611

Tele: (202) 305-0476 Fax: (202) 305-0506 [email protected] Attorney for Defendant


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 12th day of October, 2018, the foregoing

was electronically filed with the Clerk of the Court and served using the CM/ECF

system upon all parties and counsel of record.

JEFFREY CLARK Assistant Attorney General

/s/ Jennifer A. Najjar

JENNIFER A. NAJJAR CO Bar No. 50494 Trial Attorney U.S. Department of Justice Environment & Natural Resources Division, NRS P.O. Box 7611 Washington, D.C. 20044-7611

Tele: (202) 305-0476 Fax: (202) 305-0506 [email protected]

Attorney for Defendants


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