The opinion of the court was delivered by: Urbina, District Judge.
ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FACCIOLA; ISSUING THE INJUNCTION AND FINAL JUDGMENT
ORDERED that the defendants' objection to the Report and
Recommendation is OVERRULED; and it is
FURTHER ORDERED that the report and recommendation submitted
to this court on May 13, 2002 by Magistrate Judge Facciola is
HEREBY ADOPTED in total as the opinion of this court; and it
ORDERED that the grazing permit for the Horse Butte
allotment, issued by the Forest Service in violation of the
National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et
seq., is VACATED; and it is
FURTHER ORDERED that any further livestock grazing on the
Horse Butte allotment is ENJOINED until the Forest Service
complies with NEPA.
This is a FINAL JUDGMENT.
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 ...