comments from newspaper clippings . . . as justification for research funding." Pl. Ex. F, at Attach. 2. In her affidavit, Dr. Meyer described the research proposal as "completely unfounded," and the methodology as "seriously flawed in several glaring respects that appear to be calculated to achieve the preconceived result." Pl. Ex. F, at P 6; see also Pl. Ex. P, at P 4 (affidavit of Dr. Dirk Van Duren) ("it is clear that the authors are planning this research with one outcome in mind: to gather data that support the brucellosis-eradication program").
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
that neither an EIS nor an EA was required under NEPA.
Plaintiffs presented evidence tending to show that pursuant to the project plan so approved, bison are being attracted to a project study site located approximately one mile from the boundary of Yellowstone Park. The Texas A & M research proposal itself states that the plan for capture of the bison includes "the use of 'baited' portable traps and pens."
Pl. Ex. G, at 5.
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 National Park . . . will facilitate the movement of bison, elk, and other wildlife outside Yellowstone Park." Id. at P 10.
Finally, the affidavit of Donald J. Schubert, Director of Investigations for the plaintiff Fund, provided further, albeit circumstantial, evidence of a "baiting" effect as a result of the research program. Mr. Schubert stated:
Based on information I have received from Montana state officials, it is my understanding that, during the winter of 1991/1992, approximately 15-20 bison were killed by state officials on private land near West Yellowstone, Montana, and that during the winter of 1990/1991, approximately 11 bison were killed by state officials on public and private land near West Yellowstone, Montana.