The opinion of the court was delivered by: Urbina, District Judge.
DENYING THE FEDERAL DEFENDANTS' MOTION TO DISMISS; DENYING
THE INTERVENOR DEFENDANT'S MOTION TO DISMISS
This case involves nothing less than the history of the
American West. In this chapter, the court addresses the delicate
task of balancing environmental protection concerns with the
stark fact that as time goes by, there is less and less room for
the buffalo to roam.
The plaintiffs, the Fund for Animals and three individuals,
have sued the United States Fish and Wildlife Service, the
National Park Service, the United States Forest Service, the
Department of the Interior, and the Department of Agriculture
("the federal defendants") to prevent them from, among other
things, hunting bison. The federal defendants oversee the
federal lands at issue in this case. The State of Wyoming has
intervened as a defendant. Both the defendants now move the
court to dismiss this case as moot since the federal defendants
voluntarily withdrew the proposed environmental plan that the
court earlier found violated the National Environmental Policy
Act ("NEPA"). The plaintiffs continue to assert violations
despite the withdrawal of this plan, which is known as the
Jackson Bison Herd Long Term Management Plan ("the Jackson Bison
Plan"). For the reasons that follow, the court will deny the
federal defendants' and the intervenor defendant's motions to
This case concerns the management of elk and the American
bison located on federal lands in northwestern Wyoming. The
plaintiffs filed suit in October 1998 alleging several NEPA
violations and requesting an immediate injunction to stop any
organized hunt of bison on federal lands. See Compl. ¶ 1-2.
The court granted the plaintiffs' motion to enjoin, and ordered
the defendants not to participate in the destruction of bison
until they had complied with NEPA. See Mem.Op. dated October
30, 1998 at 8. The court noted in its Memorandum Opinion that
the federal defendants had violated NEPA by failing to address
sufficiently all environmental concerns in the Jackson Bison
In this case, the federal defendants prepared a FONSI in 1996
concerning the proposed management of the bison on the National
Elk Refuge ("Elk Refuge") outside of Jackson Hole, Wyoming. In
the FONSI, the federal defendants created the Jackson Bison
Plan, which included a supplemental feeding program for the
bison and provided for organized hunts of the bison. See FONSI
dated Sept. 1997. The Jackson Bison Plan did not address other
agency actions that affect the bison management, specifically
the effect of the elk supplemental feeding program on the bison.
See id. The court ruled that this omission within the Jackson
Bison Plan violated NEPA. See Mem.Op. at 8.
On June 21, 2000, the federal defendants withdrew the FONSI
and filed this motion to dismiss. See Fed. Defs.' Mot. to
Dismiss at 1. The intervenor defendant filed a similar motion.
See Intervenor Def.'s Mot. to Dismiss. The intervenor
defendant's motion to dismiss makes the same assertion as the
federal defendants' motion, namely, that the withdrawal of the
FONSI moots the current controversy.*fn1 See id. at 3.
Since the roots of this dispute date back several hundred
years, a brief review of history will provide an important
backdrop to the current controversy. Until the mid-1800's,
millions of buffalo roamed the Great Plains and the Rocky
Mountains. See Encyclopaedia Britannica, American Bison
(Feb. 22, 2001), available at www.britannica.com/bcom/e . . .
/0,5716, − 82455 1 80311,00. html?query ? americanbison.
Although Native Americans hunted buffalo, the threat of
extinction came only with the westward movement of settlers, the
introduction of unregulated hunting with guns, and the evolution
of bison hunting for sport rather than for subsistence. See
id. In fact, train companies offered trips to tourists allowing
them to shoot buffalo from the train coach during travel. See
Columbia Encyclopedia, Sixth Edition, Bison (2001) available
Most striking in retrospect was the government-promoted mass
destruction of buffalo. See id. Some federal government
officials believed that one way to tame the Native Americans was
to slaughter the buffalo population. See 4 CONG.REC. 1239
(Feb. 23, 1876). For example, Texas Representative James
Throckmorton declared on the floor of Congress, "I believe it
would be a great step forward in the civilization of the Indians
and the preservation of peace on the border if there was not a
buffalo in existence." Id.
In the 20th Century, the government steadily reversed course,
favoring policies of wildlife protection. In 1912, Congress
created the National Elk Refuge in northwestern Wyoming as a
winter reserve for elk. See 16 U.S.C. § 673. In 1929, the
federal government created the Grand Teton National Park
("GTNP") as part of the National Parks System directly adjacent
to the Elk Refuge. See 16 U.S.C. § 406-1 et seq. The United
States Fish and Wildlife Service ("FWS") manages the Elk Refuge
and the United States Park Service ("Park Service") manages the
Beginning in about 1912, the federal government implemented a
winter-feeding program on the Elk Refuge to provide an adequate
winter food supply for the elk. Each winter, the federal
government decides, based on several factors, how much it would
feed the elk in the upcoming year. Since 1912, only several
winters have been warm enough to allow the federal government
not to provide the elk with any supplemental feed. See Gov.Ex.
2 at 129-30. The federal government has never prepared an
environmental analysis addressing the Elk Refuge
supplemental-feed program. See Federal Defs.' Opp'n to Pls.'
Mot. for Prelim.Inj. ("Fed. Defs.' Opp'n") at 21.
Because human beings killed the last bison in northwestern
Wyoming in about 1840 after decades of unregulated hunting, the
Park Service reintroduced a small herd of 20 bison from
Yellowstone National Park into the Jackson Hole area in 1948.
See id. at 5. The Wyoming Game and Fish Department managed the
herd. In 1968, a portion of the herd escaped the fenced area and
roamed free within the Grand Teton National Park. See id.
During the winter of 1975-76, the bison began to migrate ...