24—Cold Mountain Cold Rivers Complaint

negatively impacted trumpeter swans and their habitat and

resulted in the ‘take” of trumpeter swans.

53.

The actions of all of the Defendants therefore violate

the MBTA and its implementing regulations.

VII. COUNT FOUR—ADMINISTRATIVE PROCEDURE ACT

54.

The preceding paragraphs are hereby realleged as if

set forth in full hereunder.

55.

All of the Counts alleged herein are reviewable

pursuant to the Administrative Procedures Act (APA) codified at

5 U.S.C. §§ 701-706. In addition to, and in conjunction with,

the statutory violations of the ESA,the actions of the Montana

Department of Livestock, Forest Service, Fish and Wildlife

Service, and National Park Service as alleged herein are

arbitrary, capricious and an abuse of discretion and, therefore,

violate the APA.

56.

Despite the Defendants’ statements that they had no

intentions for future helicopter hazing in the Horse Butte Area,

the Defendants have systematically, consistently, and

intentionally hazed bison with helicopters in the Horse Butte

Area and in the eagle closure areas.

57.

The MDOL Annual Operation Plan approved by the

Gallatin National Forest on November 27, 2000 clearly

contemplates helicopter hazing, and allows helicopter hazing in