The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
REPORT AND RECOMMENDATION
Currently pending and ready for resolution are Plaintiffs Greater Yellowstone Coalition, Et Al.'s Motion for Summary Judgment and Defendants' Motion for Summary Judgment. Plaintiffs, Greater Yellowstone Coalition, Intertribal Bison Cooperative, Defenders of Wildlife, National Wildlife Federation, Wyoming Wildlife Federation, and Gallatin Wildlife Association (collectively "GYC"). claim that defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. § 4321 et seq. (1996), by failing to conduct an environmental assessment before reissuing a livestock grazing permit on federal public lands.
The wild American buffalo (Bison bison) herd of Yellowstone National Park ("Park") is the last remnant of the vast herds that once roamed the American West. Having dwindled to approximately 20 bison by the turn of the century, the Yellowstone herd has rebounded to roughly 2,500 today, and the bison are a showcase species of the Park's unparalleled fauna. *fn1
Being bison, they have no concept of Park boundaries and frequently roam outside of the Park in search of food and more hospitable weather conditions. In winter months especially, bison will descend from the Park to lower elevations, including public National Forest lands. As much as bison may be beloved by the Park's visitors, they are not so highly regarded by Montana and Idaho ranchers who hold permits to graze cattle and horses on National Forest lands. *fn2 The natural migration of the bison to public livestock grazing lands is a source of major controversy because bison are said to transmit brucellosis to cattle. *fn3 Brucellosis is a bacterial agent that causes reproductive failure in cattle and is therefore considered a major threat to livestock interests.
In order to protect livestock from brucellosis, National Park Service and Montana state officials have conducted various spatial and temporal separation efforts since the 1980's. *fn4 The bison control efforts have included hazing (buzzing the animals with helicopters and off-road vehicles so as to drive them back towards the Park), capturing, and killing bison on lands outside the Park. The number of slaughtered bison varies from year to year, but the totals have been substantial. In the unusually harsh winter of 1996-97, for example, over 1,084 bison (almost one third of the entire Yellowstone herd) were killed, much to the dismay of wildlife supporters and conservationists. Numerous lawsuits challenging the bison control programs have been litigated over the last 17 years, but, plaintiffs claim, largely to no avail. *fn5 Plaintiffs' supplemental filing indicates that the capturing and slaughtering efforts have continued throughout this winter and spring. Plaintiffs Greater Yellowstone Coalition, Et Al.'s Motion for Leave to Submit Supplemental Evidence in Support of Request for Injunctive Relief, Exh. 1.
After years of discussion and the implementation of interim measures, the Forest Service, Park Service, and the State of Montana, among others, issued a comprehensive Joint Bison Management Plan ("Bison Plan") on December 20, 2000. II A.R. 1060A. The Bison Plan attempts to reduce the occurrence of hazing, capturing, and killing of bison that leave the Park's boundaries, but does not specifically eliminate these practices. II A.R. 1087, 1090. In addition, the Bison Plan provides that the impact of livestock grazing on bison will be addressed separately upon issuance of each grazing permit. II A.R. 1060A.
In November 1994, in response to various court decisions, the Forest Service implemented a policy to conduct NEPA analyses for the reissuance of grazing permits. I A.R. at 209. *fn6 Given the vast number of grazing permits reissued every year, *fn7 it is not surprising that the Forest Service was unprepared to handle this new slate of NEPA reviews. It quickly became apparent that the Service would not be able to complete all NEPA analyses in time to reissue expiring permits. In response to the looming threat that many permits would not be reissued for failure to complete the NEPA review, Congress enacted the Rescissions Act, Pub. L. No. 104-19, 109 Stat. 194. *fn8 (1995). The Rescissions Act established a temporary exemption from NEPA review for those permits that were up for reissuance before the NEPA review for that allotment had been completed. The Act directed each National Forest to establish and adhere to a schedule for conducting NEPA reviews on all of the grazing allotments in that Forest. Rescissions Act § 504(a), 109 Stat. 194. It also provided that if a grazing permit came up for reissuance before the time stated in the § 504(a) schedule for NEPA review, the Service must automatically reissue the permit. § 504(b), 109 Stat. 194. Thus, no rancher would be left with an expired permit solely because the Service had not completed NEPA analysis in accordance with the schedule the Service had adopted.
One of the National Forests that was affected by the Rescissions Act was the Gallatin National Forest in Montana. This Forest covers portions of the Horse Butte peninsula, which juts into Hebgen Lake, a few miles west of Yellowstone National Park. The Horse Butte peninsula also includes private land owned by the Munns Brothers, a family-owned ranching partnership. The National Forest land has been used for livestock grazing since 1932, and the Munns Brothers have held a permit on the allotment from 1961 to the present. Because the Horse Butte peninsula is so close to the Park, it is a favorite seasonal grazing area for the bison. As already stated, the bison's presence on the same lands used by cattle creates the potential for the transmission of brucellosis from the bison to the cattle. Thus, the various separation measures carried out by state and federal agencies are designed to prevent the bison from roaming onto the Horse Butte allotment in particular. The effects of this separation program would be one of the most prominent topics of a NEPA review of the Horse Butte allotment grazing permit reissuance.
Pursuant to the Rescissions Act, in November 1995, the Gallatin National Forest established a NEPA compliance schedule that set a 1998 environmental analysis and decision date for the Horse Butte allotment. I A.R. 198. This compliance date was later included in a national list compiled by the Forest Service's national headquarters. I A.R. 263.
By the summer of 1997, officials at the Gallatin National Forest anticipated that the 1998 deadline would not be met. There is conflicting evidence as to whether the Service was intentionally delaying the NEPA analysis so as to tier it to the Bison Plan that was in the works, or whether it had simply fallen behind in its work. On July 24, 1997, Claude Coffin, an Assistant District Ranger, wrote in an internal memorandum that "our plans for completing NEPA on [the Horse Butte] allotment depended on completion of the EIS for bison management." I A.R. at 630. In August 1997, Gary L. Benes ("Benes"), the District Ranger with jurisdiction over the Horse Butte allotment, wrote to the Munns Brothers that the NEPA analysis would not be complete in fiscal year 1998 because four other "higher priority" allotments were ahead in line. I A.R. at 106. On May 24, 1999, Benes wrote to David P. Garber, the Gallatin National Forest Supervisor, "Because of the inter-agency effort to complete the EIS for the Bison Management Plan, we decided not to complete the Horse Butte analysis. We felt the Horse Butte analysis should be tiered to the Record of Decision for the Interagency Management Plan." I A.R. at 638.
In any event, fiscal year 1998 came and went and the Forest Service failed to initiate, let alone complete, the NEPA analysis for Horse Butte. At some point, the original schedule issued in 1995 was amended to postpone the Horse Butte date, but is not quite clear under what circumstances this amendment was made. There is some indication that in 1996 the Horse Butte allotment was moved from 1998 to 2001, but no later records reflect this amendment as ever having been carried out. I A.R. 203. Then, at some point in late 1999 or early 2000, the Horse Butte date was moved from 1998 to 2004. A December 1999 schedule still included Horse Butte in a list of allotments to be completed by 1998, but a handwritten note indicates that the date had been changed to 2004. I A.R. at 610. A revised schedule dated approximately one month later shows a decision date of 2004 for the Horse Butte allotment. I A.R. at 618.
Meanwhile, the Munns Brothers' permit was due to expire on December 31, 2000. The permit was reissued on December 19, 2000. The District Ranger, invoking § 504(b) of the Rescissions Act, 109 Stat. 194, reissued the permit for another 10 years on the same terms, subject to modification upon completion of the NEPA analysis. I A.R. at 169. The reissuance allowed the Munns ...