United States District Court, D. Montana, Butte Division
MEMORANDUM AND ORDER
E. HADDON UNITED STATES DISTRICT COURT JUDGE.
Federal Defendants and Defendant Steve Bullock
("Bullock")separately filed renewed and opposed
motions to dismiss Plaintiff Cottonwood Environmental Law
Center's ("Cottonwood") Second Amended
Complaint for Declaratory and Injunctive Relief ("Second
Amended Complaint"). Briefing is complete. Both motions were
heard on February 19, 2019.
filed its initial Complaint for Declaratory and Injunctive
Relief ("Complaint") on February 8, 2018,
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"),  and "by failing to determine
whether" a supplemental NEPA analysis was necessary,
given allegations that the Blackfeet Tribe
intended to hunt bison north of Yellowstone National Park,
Amended Complaint for Declaratory and Injunctive Relief
("First Amended Complaint") was filed on February
20, 2018,  alleging that available additional
sources of information required the Federal Defendants and
Governor Bullock to supplement the IBMP's NEPA
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,
asserting that the pleading failed to establish subject
matter jurisdiction and failed to state a
claim. On April 23, 2018, the Federal
Defendants moved to dismiss on the same
grounds. Briefing on both motions was completed
on May 29, 2018.
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),  claiming an interest in
"the translocation of some Yellowstone buffalo to the
Fort Peck quarantine facility."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." The Federal
Defendants did not oppose intervention. On May 1,
2018, intervention was granted.
17, 2018, Cottonwood moved to further amend its
complaint. The motion was denied for failure to
comply with L.R. 7.1(d)(1)(A). Cottonwood filed a second
motion to amend on July 20, 2018. That motion was granted
on September 26, 2018, following briefing and
Second Amended Complaint was filed on October 7, 2018,
in which all claims against the Montana
Department of Livestock and the Montana Department of Fish,
Wildlife and Parks were withdrawn. Additional allegations in
support of Cottonwood's NEPA claims against the Federal
Defendants and Governor Bullock were asserted. The Federal
Defendants and Bullock separately moved to dismiss the Second
Amended Complaint on October 12, 2018.
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. 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. The Court also ordered
that pending motions to dismiss be denied without prejudice
to renewal, if appropriate, following completion of the
responses to the Requests for Admission were filed on January
25, 2019. That same day, the Federal Defendants
"move[d] to renew their Motion to Dismiss,
" and Bullock "move[d] to renew his
Motion to Dismiss."
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.'" Although "an initial EIS [may
be] sufficient, ... in certain circumstances [it] must be
regulations "impose a duty on all federal agencies to
prepare supplements to either draft or final EIS's
if': "(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." The '"proposed action'
contemplated by the regulation'" makes
"supplementation . . . necessary only if 'there
remains "major Federal actio[n]" to
Second Amended Complaint is the third complaint
filed. 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."
"a well-pleaded complaint may proceed even if it strikes
a savvy judge that actual proof of those facts is improbable,
" Rule 8's pleading standard
"demands more than an unadorned,
accusation." "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."' The Second Amended Complaints fails to
allege facts sufficient to show an "ongoing 'major
Federal action' that could require
supplementation" to meet the pleading requirements of
Iqbal and Twomblyand as
mandated by Norton v. Southern Utah Wilderness
in the Second Amended Complaint or briefs directed to the
pending motions suggest that existing pleading deficiencies
could be cured by a fourth complaint. 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 and futile.
Motion to Renew Federal Defendants' Motion to
Dismiss is GRANTED.
Motion to Renew Governor Bullock's Motion to
Dismiss is GRANTED.
motions as renewed are GRANTED.
Second Amended Complaint is DISMISSED with prejudice.
clerk is directed ...