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Cottonwood Environmental Law Center v. Bernhardt

United States District Court, D. Montana, Butte Division

February 20, 2019

DAVID BERNHARDT, in his official capacity as Acting Secretary of the Interior[1]; STEVE BULLOCK, in his official capacity as Governor of the State of Montana; MONTANA DEPARTMENT OF LIVESTOCK; MONTANA DEPARTMENT OF FISH, WILDLIFE, AND PARKS; DAN WENK, in his official capacity as Park Superintendent, Yellowstone National Park; LEANNE MARTEN, in her official capacity as Regional Forester, U.S. Forest Service; NATIONAL PARK SERVICE; U.S. FOREST SERVICE; USDA-ANIMAL & PLANT HEALTH INSPECTION SERVICE, Defendants.




         The Federal Defendants[2] and Defendant Steve Bullock ("Bullock")[3]separately filed renewed and opposed motions to dismiss[4] Plaintiff Cottonwood Environmental Law Center's ("Cottonwood") Second Amended Complaint for Declaratory and Injunctive Relief ("Second Amended Complaint").[5] Briefing is complete. Both motions were heard on February 19, 2019.

         Cottonwood filed its initial Complaint for Declaratory and Injunctive Relief ("Complaint") on February 8, 2018, [6] claiming that the Federal Defendants, Governor Bullock, the Montana Department of Livestock, and the Montana Department of Fish, Wildlife and Parks "violated, and continue to violate, the National Environmental Policy Act [("NEPA")] by failing to supplement the NEPA analysis for the Interagency Bison Management Plan" ("IBMP"), [7] and "by failing to determine whether" a supplemental NEPA analysis was necessary, [8]given allegations that the Blackfeet Tribe intended to hunt bison north of Yellowstone National Park, [9]

         An Amended Complaint for Declaratory and Injunctive Relief ("First Amended Complaint") was filed on February 20, 2018, [10] alleging that available additional sources of information required the Federal Defendants and Governor Bullock to supplement the IBMP's NEPA analysis.[11]

         Defendants Bullock, the Montana Department of Livestock, and the Montana Department of Fish, Wildlife and Parks collectively moved to dismiss the First Amended Complaint on March 15, 2018, [12] asserting that the pleading failed to establish subject matter jurisdiction and failed to state a claim.[13] On April 23, 2018, the Federal Defendants moved to dismiss on the same grounds.[14] Briefing on both motions was completed on May 29, 2018.[15]

         On April 13, 2018, the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation and the InterTribal Buffalo Council (collectively "Intervenors") moved to intervene under Fed.R.Civ.P. 24(a)(2), [16] claiming an interest in "the translocation of some Yellowstone buffalo to the Fort Peck quarantine facility."[17]Notwithstanding the claim "that disposing of the action in favor of the Plaintiff [would] prevent [such] quarantining," Intervenors asserted that "[n]o existing party to this action adequately represent [their] interests."[18] The Federal Defendants did not oppose intervention.[19] On May 1, 2018, intervention was granted.[20]

         On July 17, 2018, Cottonwood moved to further amend its complaint.[21] The motion was denied for failure to comply with L.R. 7.1(d)(1)(A).[22] Cottonwood filed a second motion to amend on July 20, 2018.[23] That motion was granted on September 26, 2018, following briefing and hearing.[24]

         Cottonwood's Second Amended Complaint was filed on October 7, 2018, [25]in which all claims against the Montana Department of Livestock and the Montana Department of Fish, Wildlife and Parks were withdrawn.[26] Additional allegations in support of Cottonwood's NEPA claims against the Federal Defendants and Governor Bullock were asserted.[27] The Federal Defendants and Bullock separately moved to dismiss the Second Amended Complaint on October 12, 2018.[28]

         On November 1, 2018, Cottonwood moved for additional time to conduct limited jurisdictional discovery and to "stay briefing and consideration" of the pending motions to dismiss until the discovery requested was completed.[29] On December 26, 2018, the Court granted the motion to stay in part, allowing Cottonwood "to pose four Requests for Admission to Governor Bullock" regarding jurisdictional issues.[30] The Court also ordered that pending motions to dismiss be denied without prejudice to renewal, if appropriate, following completion of the jurisdictional discovery.[31]

         Bullock's responses to the Requests for Admission were filed on January 25, 2019.[32] That same day, the Federal Defendants "move[d] to renew their Motion to Dismiss, "[33] and Bullock "move[d] to renew his Motion to Dismiss."[34]


         The circumstances under which an environmental impact statement ("EIS") must be prepared are clearly articulated in NEPA, which states, specifically, that "a federal agency [must] prepare an [EIS] as part of any 'proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.'"[35] Although "an initial EIS [may be] sufficient, ... in certain circumstances [it] must be supplemented."[36]

         Federal regulations "impose a duty on all federal agencies to prepare supplements to either draft or final EIS's if'[37]: "(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts."[38] The '"proposed action' contemplated by the regulation'"[39] makes "supplementation . . . necessary only if 'there remains "major Federal actio[n]" to occur.'"[40]

         The Second Amended Complaint is the third complaint filed.[41] This case was initiated over a year ago. Fed.R.Civ.P. 8(a)(2) mandates that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief."

         Although "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, "[42] Rule 8's pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."[43] "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'[44] The Second Amended Complaints fails to allege facts sufficient to show an "ongoing 'major Federal action' that could require supplementation"[45] to meet the pleading requirements of Iqbal[46] and Twombly[47]and as mandated by Norton v. Southern Utah Wilderness Alliance.[48]

         Nothing in the Second Amended Complaint or briefs directed to the pending motions suggest that existing pleading deficiencies could be cured by a fourth complaint.[49] Moreover, Cottonwood has clearly stated its intention to stand on allegations as asserted in the Second Amended Complaint. An additional bite at the apple would be both inappropriate[50] and futile.[51]


         1. The Motion to Renew Federal Defendants' Motion to Dismiss[52] is GRANTED.

         2. The Motion to Renew Governor Bullock's Motion to Dismiss[53] is GRANTED.

         3. The motions[54] as renewed[55] are GRANTED.

         4. The Second Amended Complaint[56] is DISMISSED with prejudice.

         5. The clerk is directed ...

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