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March 9, 2001


The opinion of the court was delivered by: Urbina, District Judge.




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 dismiss.


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 Plan.

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 . . . /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 at

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 GTNP.

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 ...

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