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FUND FOR ANIMALS, INC. v. ESPY

February 24, 1993

THE FUND FOR ANIMALS, INC., et al., Plaintiffs,
v.
MICHAEL ESPY, Secretary of the United States Department of Agriculture,1 Defendant.


Oberdorfer


The opinion of the court was delivered by: LOUIS F. OBERDORFER

Plaintiffs in this action challenge a February 18, 1993 decision of defendant to fund, approve, and implement a research program involving the capture (on or before February 28, 1993) of 10 to 60 pregnant wild bison from just outside the boundary of their habitat, Yellowstone National Park, their transportation by truck 2000 miles to Texas, their artificial infection with the microorganism brucella, their corralling in Texas with cattle, and, after a few months of study, their slaughter. Plaintiffs contend that defendant's action violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and regulations under the Act.

 Since defendant has indicated that it must act before February 28, 1993, plaintiffs moved for preliminary relief. A February 19, 1993 Order granted plaintiffs' motion for a temporary restraining order pending further order of the Court. That Order enjoined defendant "to take all necessary steps to maintain in status quo ante any bison selected by defendant, or any entity or person acting in concert with it, for its research plan . . . ." During a February 22, 1993 hearing, the parties agreed, and it was ordered, that plaintiffs' motion for a temporary restraining order would be treated as a motion for a preliminary injunction in order to facilitate appellate review of any ruling on the motion in the limited time allowed by the circumstances here. For reasons stated below, an accompanying Order grants that motion.

 FINDINGS OF FACT

 It is likely that at a trial on the merits plaintiffs will prove by a preponderance of the evidence the following:

 Plaintiffs are the Fund for Animals, Inc., a non-profit membership organization committed to the preservation of animal species in their natural habitats, and four individuals who reside near Yellowstone National Park. According to the verified complaint, members of the Fund have traveled and will continue to travel to the Park "to observe, photograph, protect, and otherwise enjoy the bison in its natural habitat." Complaint at P 4. The Fund alleges that defendant's failure to comply with NEPA "injures the Fund and its members by depriving them of crucial information and input regarding the project, and by reducing opportunities by Fund members to observe, photograph, and otherwise enjoy bison in their natural habitat." Id. Plaintiff Tom Skeele alleges that he "enjoys observing bison" in and around Yellowstone and that "he has financially benefited from the bison and other wildlife in Yellowstone because he conducts environmental education workshops for high school students." Id. at P 5 The verified complaint further alleges that plaintiff Skeele's "ability to obtain crucial information about USDA's project, which he could in turn convey to his students during his workshops, is impaired by USDA's failure to comply with NEPA." Id. Plaintiff Janice Dunbar alleges that her "ability to enjoy the bison and to appreciate their role in the ecological functioning of the Park will be impaired" by the proposed research project, and that the project "will also cause great emotional distress to Ms. Dunbar and diminish the quality of her experiences when visiting Yellowstone National Park." Id. at P 6. Plaintiffs R.J. and Sandy Moulton allege that they "enjoy observing bison both inside and outside of the Park, and they believe that the bison greatly enrich the character and aesthetic diversity of the West Yellowstone region." Id. at P 7. The complaint alleges that the Moultons' "ability to enjoy the bison and surrounding areas will be impaired as a result of USDA's approval of the capture and killing of Yellowstone bison." Id.

 The last remaining wild herd of 2400 bison exists in Yellowstone National Park. In recent years, some bison have migrated during the winter to areas in Montana outside the Park. Ranchers in Montana have expressed concern that the bison may be contaminating cattle with the microorganism known as brucella. Scientists agree that the route of transmission of the brucella organism among bison is from mother to calf during pregnancy, birth, or nursing. While there are no confirmed instances of cattle contamination by free-ranging bison, the cattle industry is very important in Montana. In 1984 the State of Montana, with considerable effort and expense, obtained certification as a brucellosis-free state. The state and its people are justly proud of this achievement, and Montana's freedom from brucellosis infection is of great value to its cattle industry.

 At least as early as 1990, Federal and State of Montana officials began cooperating on plans for bison management pending the completion of an environmental impact statement (EIS) by Federal officials. See Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1395 (9th Cir. 1992). In February 1992, the state of Montana and Federal officials agreed to an "Interim Bison Management Operating Plan," the primary objective of which is "to mitigate or eliminate the potential spread of brucellosis to domestic cattle." Pl. Ex. E, at 1. To achieve this objective, Montana officials, with some federal assistance and (after hotly contested litigation) the approval of the Court of Appeals for the Ninth Circuit, have, over the last several years, slaughtered numerous bison that have wandered out of Yellowstone National Park onto adjoining private and state lands. Pl. Ex. B, at 1.

 In August 1992, researchers from Texas A & M University submitted a request to the United States Department of Agriculture (USDA) for $ 94,000 in federal funds to conduct research on a large number of "live captured bison of YNP [Yellowstone National Park] origin held under controlled experimental conditions." Pl. Ex. G, at 3. The proposal contemplates the capture of up to 60 free-roaming, wild pregnant bison in Montana and their transportation by truck approximately 2000 miles to Texas. There, half of them would be artificially infected with the brucella organism and corralled in close proximity to cattle for a period of time. *fn2" Researchers at Texas A & M then propose to determine whether the infected bison abort as a result of contamination with brucellosis, and whether the infection would be transmitted to cattle upon direct contact with the aborted tissue. Id. at 3-4. After the study, the infected bison would be slaughtered because they would be, according to the research proposal, "a potential health hazard to domestic livestock." Id. at 3. The research proposal states, among other things, that it is designed to respond to "untested hypotheses" in "newspaper articles" and "court testimony" that "Brucella induced abortions are extremely rare to nonexistent in YNP bison" and that "large numbers of Brucella infected YNP bison could come into close proximity to susceptible cattle 'without any risk' of transmission . . . ." Id. at 2. The proposal further states:

 
If there is not solid research data to confirm or confront the unfounded "beliefs" and assertions resulting from the untested hypotheses, the courts (and others) may agree with the animal activists [sic] groups and this would severely impair or obstruct the present Federal/State Cooperative Brucellosis Eradication Program.

 Id.

 Plaintiffs have filed statements by credentialed scientists severely criticizing the Texas A & M research proposal. Dr. Mary Meagher, an animal ecologist with the National Park Service who has studied Yellowstone bison for 27 years, stated in an October 15, 1992 letter to the USDA that she was "troubled" by the proposal's ostensible purpose of responding to "simplifications and misstatements" in "newspaper articles." Pl. Ex. H. She opined that the "proposal appears fundamentally flawed" because a "controlled test such as proposed here unavoidably alters all the ecological parameters, and therefore, cannot tell us how the [brucella] organism functions in this particular situation." Id. Dr. Meagher "strongly" suggested

 
that this approach be canceled. It seems less than humane to put wild bison through all the stress necessary to obtain experimental animals for a proposal that cannot furnish information useful for the specific Yellowstone situation.

 Id. (emphasis added).

 Defendant offers evidence that, before approval of the research, all comments received, including those of Dr. Meagher and Dr. Meyer, were reviewed at USDA and that copies of the research proposal were sent to the Advisory Committee of the U.S. Animal Health Association and the Greater Yellowstone Area Brucellosis Technical Committee. Luchsinger Decl., at PP 7-8. According to the defendant, these two groups, the latter of which includes representation from the National Park Service, support the research. Id.

 In a December 16, 1992 letter, the USDA's Deputy Administrator of Veterinary Service informed the Yellowstone National Park Superintendent that the USDA had decided to "provide a grant to the Texas A & M University (TAMU) to perform a research project on bison from the Yellowstone National Park." Pl. Ex. I. The USDA requested the Park Service to "authorize" it to "capture" a sufficient number of bison to "end up with sixty (60) head of brucellosis seronegative pregnant bison." The letter also explained that USDA would provide "all necessary facilities," such as "portable testing equipment and portable panels to form an enclosure to trap (contain) the bison." Id. (parenthetical in original).

 In a December 29, 1992 response, Robert D. Barbee, the Superintendent of Yellowstone Park, refused to allow bison to be removed from the Park for research. The Superintendent noted that "NPS is bound by the provisions of [NEPA], and this law would require the NPS to conduct an environment assessment or possibly an environmental impact statement (EIS) for a research project such as you propose." Pl. Ex. J. The Superintendent also explained to the USDA that Federal and state agencies were in the process of preparing a "long-term bison management plan and EIS" that will discuss "alternatives that will address and provide for research of the magnitude that you propose." Finally, he stated that the EIS was projected for completion by January 1994.

 Thereafter, nevertheless, the USDA decided to proceed with the research project, but modified it to provide for the taking of only bison that wandered (or were attracted) onto lands adjacent to Yellowstone Park rather than bison in Yellowstone itself. On February 18, 1993, the USDA Deputy Administrator for Veterinary Services granted official permission "to move between 10 and 60" pregnant bison from Montana to Texas A & M for the research project. Pl. Ex. L.

 Defendant approved the research project without first obtaining either an environmental impact statement (EIS) or an environmental assessment (EA), or making any determination pursuant to the "categorical exclusion" provisions at 7 C.F.R. § 1b.3 *fn4" that neither an EIS nor an EA was required under NEPA.

 According to the affidavit of Susan Newman, a nearby resident, since late January 1993 roads in the site area have been plowed, and feed (hay) has been placed along the roads and at the pen location. Pl. Ex. N., at PP 3-9.

 Dr. Allen T. Rutberg, a senior scientist for the Humane Society of the United States, stated in an affidavit that "providing hay to bison outside Yellowstone National Park is likely to increase the number of bison that leave the park, and to keep bison out of the park for longer periods." Pl. Ex. O, at P 8. He also stated that "road-plowing and other snow-removal activities . . . carried out in connection with the construction of corrals and provision of hay at a trap site outside Yellowstone ...


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