Notice of Intent (NOI) to Sue for Violations of the Endangered Species Act as a Result of Impacts to Bald Eagles Caused by the Illegal Hazing of Bison on and in the Vicinity of Horse Butte on the Gallatin National Forest

BY TELEFAX AND MAIL

Dear Mr. Bosworth, Mr. McMaster, and Governor Racicot:

On behalf of the combined memberships of The Fund for Animals, Buffalo Field Campaign, Ecology Center, and Cold Mountain, Cold Rivers, I request your immediate investigation of the bison hazing activities conducted by the Montana Department of Livestock (MDOL) on April 20, 2000. My clients assert that the bison hazing activities conducted by the MDOL with the assistance of other agencies on April 20, particularly the extensive use of a helicopter, were in blatant violation of the terms and conditions of the Special Use Permit (SUP) issued to the MDOL in March 1999. Special Use Permit, Holder No. 1703/01. Furthermore, because of the MDOL's disregard for the terms and conditions of the SUP intended to protect nesting eagles in the Horse Butte area and the U.S. Forest Service's inability or unwillingness to enforce the restrictions imposed by the SUP and Biological Opinion, the bison hazing activities on April 20 also violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).

More specifically, as documented on a videotape and in signed declarations being sent to you under separate cover, on April 20 the MDOL illegally used a helicopter for the hazing of bison on and in the vicinity Horse Butte on the Gallatin National Forest. The helicopter, traveling within 150 feet off the ground, was used to haze bison located within Zone II as identified in the SUP. In addition to using the helicopter as a hazing tool, personnel believed to be affiliated with the MDOL were shooting cracker shells from the helicopter to facilitate hazing. At the time of the hazing, the Horse Butte eagle nest was active and the pair of eagles was observed circling the area. Though not documented by Buffalo Field Campaign volunteers, it is probable that the hazing activities of the MDOL, and specifically the low-altitude helicopter operation, caused these eagles to flush from their nest.

The helicopter hazing was done in conjunction with ground-based hazing conducted by federal and state officials on horseback. We understand that an official with the Hebgen Ranger District authorized, as required by the SUP, the use of horses for hazing activities on April 20 within Zones I and II, but also allegedly emphasized that the use of helicopters for hazing was not permitted in Zone I and Zone II of any active bald eagle nest site in the Horse Butte area.

The hazing activities of the MDOL resulted in numerous violations of the SUP terms and conditions. Specifically, the MDOL violated explicit prohibitions on the use of helicopters within Zone II and in the Horse Butte area, (see, Exhibit B to SUP), and the general closure of the Horse Butte area to "all activities" between December 1 and August 15. Id. The MDOL also failed to comply with section VII, subsection V which specifies that the MDOL is responsible for complying with the protective and mitigative measures to protect listed species and their habitat as required by the authorized officer. These protective and mitigative measures for bald eagles are contained in Exhibit B of the SUP and are contained in the December 18, 1998 Biological Opinion.

This is the third incident in successive years where the MDOL has violated the terms and conditions of the SUPs authorizing bison capture and hazing activities on the Gallatin National Forest. In April 1998, as evidenced on a videotape provided to you at the time by Cold Mountain, Cold Rivers, a helicopter being used by the MDOL to haze bison was documented violating the bald eagle closure area on Horse Butte on two occasions. A year later, on March 31, 1999, Buffalo Field Campaign volunteers documented that the MDOL illegally hazed bison by snowmobiles within 1/4 mile of open water before 10:00 AM in violation of SUP terms and conditions. This 1999 incident resulted in an April 5, 1999 letter to Marc Bridges of the MDOL reminding his agency of the terms and conditions of the SUP. As a result of the latest violation of the SUP, it is now abundantly clear that the MDOL is unable or unwilling to comply with the requirements imposed by the SUP.

As a result, the U.S. Forest Service (USFS) must take the following short term actions to ensure that the MDOL complies with the terms of the SUP in the future:

1. Prohibit the MDOL from taking any action, including hazing or shooting, against any bison on the Gallatin National Forest until June 1, 2000. While our organizations question the need for hazing activities and have serious humane concerns about the hazing of Yellowstone bison, particularly to pregnant bison and bison calves, bison hazing activities prior to late May/early June are unlikely to be successful due to the lack of green-up within Yellowstone National Park. Even if bison were to give birth or experience a reproductive failure on the Gallatin National Forest before June 1, 2000, considering the fact that many bison consume the birthing material, the activities of predatory and scavenging animals, the limited persistence of the bacteria in direct sunlight, and the alteration in grazing permit conditions instituted by the USFS in February 1999, they would pose no risk of bacteria transmission to cattle subsequently placed on the public land allotments in the area.

2. If the MDOL intends to haze bison back into Yellowstone National Park on or after June 1, 2000, the USFS and U.S. Fish and Wildlife Service (FWS) must make personnel available to observe the operation to ensure that the MDOL is complying with all terms and conditions of the SUP and the biological opinion. Such monitoring is required by the terms and conditions of the biological opinion, but, based on information from the field, is not occurring.

After July 1, 2000, due to the repeated violations of the SUP terms and conditions by the MDOL, the USFS must revoke the authorization for the construction and operation of the bison trap and other bison management activities, including hazing, on the Gallatin National Forest as required by section V, subsection B. This section authorizes the USFS to suspend or revoke a permit if: (1) there is non-compliance with federal, state, or local laws and regulations; (2) there is noncompliance with the terms and conditions of the permit; (3) for reasons in the public interest. (See also, section VII, subsection E which allows the USFS to suspend the SUP "in whole or in part for breach of any stipulation...").

The revoked SUP may, pending proper analysis of the environmental impacts in a legally sufficient Environmental Impact Statement, be replaced with a new SUP. My clients believe that a new SUP, if developed and if it is to provide appropriate protection for Yellowstone's bison, should prohibit the shooting, capture, or hazing of bison within the Gallatin National Forest from November 1 through June 1. Hazing could be permitted in a new SUP but only between June 1 and November 1 and only if done on foot, by horseback, and if cracker shells or other exploding devices are not permitted.

In addition to the persistent violations of the SUP terms and conditions by the MDOL, we also believe that the activities of the MDOL and those federal agencies responsible for monitoring the activities of the MDOL are in violation of NEPA and the ESA.

First, the Environmental Assessment (EA) prepared by the USFS in 1998 to evaluate the environmental impacts of the construction and operation of the Horse Butte capture facility and related bison management activities did not consider the environmental impacts of the use of helicopters for bison hazing on Horse Butte or within Zone II. The fact that this activity was illegal is irrelevant because it has now occurred and, as a result, it has caused environmental impacts which were never evaluated in the EA.

Furthermore, a new NEPA document is required based on the fact that the Horse Butte eagle nest was productive in 1999. The analysis of impacts of the MDOL activities on this eagle pair contained in the EA was based on information which indicated that this pair had not successfully produced young at this nest site since 1992. Last year, young eagles were successfully fledged from this nest site. The sudden success of this eagle nest constitutes new circumstances or information relevant to the environmental concerns associated with this action thereby requiring a new or supplemental analysis. 40 C.F.R. §1502.9(c)(1)(I).

Second, Montana has violated Section 9 of the ESA by illegally taking eagles on Horse Butte. Not only did the helicopter hazing activities on the MDOL on April 20 likely result in flushing the eagles from the Horse Butte nest site -- with unknown but potentially damaging consequences to the survival of any young in the nest -- but such activities may have also affected the nesting of other eagles on the butte. The fact that the FWS authorized the incidental take of eagles and their offspring at the Horse Butte nest site in its December 18, 1998 biological opinion is not relevant. That incidental take statement was based on the lack of productivity from this nest site since 1992 and on permit terms and conditions which were intended to preclude helicopter use on Horse Butte and in Zones I and II. Since the MDOL acted in violation of the terms and conditions of its SUP, the incidental take statement is not applicable to its actions and, therefore, the adverse impacts of the helicopter hazing on the Horse Butte nest eagles and other eagles on the butte represents an illegal take under the ESA.

The USFS has also violated Section 9 and Section 7(a)(2) of the ESA by repeatedly failing to enforce the terms and conditions of the SUP, failing to conduct compliance checks, and failing to take appropriate actions when the MDOL has not been in compliance with the SUP as required by the Biological Opinion. This non-discretionary duty to enforce the terms and conditions for the protection of bald eagles was explicit in the Biological Opinion. Indeed, the Biological Opinion specified that the USFS was required to comply with the terms and conditions contained therein, including bison hazing requirements, compliance checks, and taking appropriate actions for noncompliance, in order to "be exempt from the prohibitions of section 9 of the Endangered Species Act." Biological Opinion at 28.

Finally, the USFS is in violation of Section 7(a)(2) of the ESA due to its failure to reinitiate consultation based on the changes in the circumstances involving bison management on and in the vicinity of Horse Butte (i.e., the use of helicopters to haze bison in areas where such use is prohibited and the documented success of the Horse Butte eagle nest). As indicated previously, the conclusions reached during the previous consultation process, at least in regards to the impacts of the action on bald eagles, were based on evidence that the Horse Butte eagle nest had been unproductive from 1992 to 1998 and on the terms and conditions of the SUP which were intended to reduce the impacts of bison management activities on eagles nesting on the butte. Now, not only is there documented evidence that the Horse Butte eagle nest is productive but it is also clear that the MDOL has violated, yet again, the terms and conditions of its SUP.

Based on the existing violations of the ESA in association with the management of bison by the MDOL on and in the vicinity of Horse Butte, my clients hereby provide notice of their intent to file suit under the ESA if these violations are not permanently rectified by the agencies, including the State of Montana, responsible for these violations.

Because of the changed circumstances and the pattern of violations of the SUP terms and conditions by the MDOL, we strongly encourage the USFS and FWS to provide the relief sought in this letter. This relief, as explained previously, seeks: (a) short term modification of the SUP (i.e., prohibition of all bison management activities on the Gallatin until June 1, 2000, official monitoring of subsequent activities); (b) the revocation of the existing SUP and development of new SUP, including the preparation of a new NEPA document; and, (c) the reinitiation of Section 7 consultation and preparation of a new NEPA document to evaluate the impacts of bison management on the Gallatin National Forest in light of the changed circumstances. Failure to take appropriate action and to continue to countenance the illegal activities of the MDOL on the Gallatin National Forest is inappropriate, irresponsible, and may result in litigation.

Thank you for your immediate consideration of this letter and for your prompt action to remedy this intolerable situation.

Sincerely,