17—Cold Mountain Cold Rivers Complaint

effects of the capture facility on bald eagles has not been

determined, and only monitoring in subsequent years can

provide the necessary data to make such determination.

Eliminating the pre-monitoring requirements effectively

destroys the ability to obtain an accurate assessment of

the effects of the capture facility on bald eagles and

their nesting and foraging habitat.

33.

The FS’s response attempts to rationalize its

failure to require the MDOL to perform pre-monitoring by

relying on language from the BA that states that

“monitoring is an adaptive process and changes may occur

with coordination between DOL and USFS.” SeeUSDA’s response

to RMS’s sixty-day notice of intent to sue for violations

of §§ 7 and 9 of the Endangered Species Act. However, MDOL

is responsible for monitoring, and the threshold objectives

of monitoring include actions to “[d]etermine if the Horse

Butte bald eagle pair initiates nesting and incubation” and

to “assess whether there are changes in foraging/perching

use areas along the Madison Arm of Hebgen Lake before,

during and after capture facility operations and

construction.” See Appendix V to Appendix A of the EA, p.

34 (emphasis added). If no pre-monitoring occurs, that is,

if there is no yearly environmental baseline established