By Laura Lundquist
Despite an appellate court’s ruling allowing helicopter hazing of bison, an environmental group is happy about the precedent they won: namely the standing they can use in future lawsuits.
On Thursday, the 9th Circuit Court of Appeals ruled on a case brought by the Alliance for the Wild Rockies in 2011 against the U.S. Forest Service, Fish and Wildlife Service, National Park Service and Christian MacKay as executive director of the Montana Department of Livestock.
After hearing arguments on Nov. 8, the three judges overruled U.S. District Judge Charles C. Lovell and said AWR has standing under the Endangered Species Act and the National Environmental Protection Act to bring lawsuits.
To have standing, a plaintiff must prove that they suffered injury and that the defendant could remedy that injury.
However, the court agreed with Lovell in denying AWR’s request to stop bison helicopter hazing.
AWR executive director Mike Garrity still claimed victory.
“The 9th Circuit found that we have standing to sue the federal agencies involved in helicopter hazing for non-compliance with (laws requiring agency consultation). This re-opens the courthouse door so that we can now sue to challenge the federal agencies' most recent analysis on the impacts of helicopter hazing on grizzly bears,” Garrity said.
The 2011 case revolved around the use of Department of Livestock helicopters to haze bison back into Yellowstone National Park.
But the AWR challenged the use of helicopters because the Interagency Bison Management Plan, as approved by all the agencies, had included the use without studying how it might affect grizzly bears, a species protected by the Endangered Species Act.
AWR claimed that helicopters disturbed grizzly bears in the greater Yellowstone area and could stress them enough to kill them, which would violate the ESA.
A September 2012 Biological Opinion concluded that helicopter operations “may affect but are not likely to adversely affect listed grizzly bears.”
The federal agencies tried to argue that they shouldn’t be sued for a DOL operation.
But the appeals court said they were responsible because they signed off on the plan.
One part of the ESA requires people wanting to sue a federal agency to give the agency 60 days notice so the agency can try to address the problem before it goes to court.
But in May 2011, Garrity was trying to ground the helicopters as the haze was starting.
So he gave his 60-day notice and filed a lawsuit one week later without the ESA charges. After the 60 days had passed, his attorney amended the lawsuit to include those charges.
Federal attorneys cried foul, claiming the 60-day window was violated.
Helicopters were used last spring to haze bison out of the Tom Miner Basin northwest of the Gardiner Basin. But they weren’t used during the May hazing operation outside West Yellowstone, where they were always used before.
DOL spokesman Steve Merritt has said the cost to run a helicopter is $700 an hour.
The DOL is unlikely to use such an expensive tool because its budget is at least $400,000 in the red.