2—Cold Mountain Cold Rivers Complaint
Exhibit 1, Jan. 5, 2001 NOI. In that NOI, Plaintiffs also reminded the Defendants of the helicopter
hazing prohibition in the “Horse Butte Area.” See Ex.1. The NOI additionally notified the
Defendants that the Annual Operation Plan for the 2000-2001 Montana Department of Livestock
(MDOL) Bison Capture Facility violates the Biological Evaluation (BE) and BO, and therefore the
ESA, by redefining the boundaries of the Horse Butte Area where Helicopter use is strictly
prohibited. Sixty days has now lapsed since Plaintiffs sent the NOI. See Ex. 1.
Plaintiffs hereby also challenge the Annual Operation Plan and Special Use Permit
issued by the Gallatin National Forest, and the use of helicopters in the Horse Butte Area to haze
bison. On April 27, 2000, Plaintiffs originally sent Defendants a sixty-day NOI for various ESA
violations, including helicopter hazing in the Horse Butte Area. See Exhibit 2, April 27, 2000 NOI.
By the non-discretionary terms and conditions of the BO, and the Incidental Take Statement (ITS)
contained therein, helicopter hazing in the Horse Butte Area is strictly prohibited to protect nesting
bald eagles and their habitat.
In May of 2000, prior to expiration of April 27, 2000 NOI, Plaintiffs sought
equitable relief in the form of a motion for a Temporary Restraining Order (TRO) to halt the
continuing illegal hazing of bison in the Horse Butte Area over bald eagle nests and their foraging
territory. At the hearing on the petition for the TRO, the “Defendants represent[ed] to the Court that
there is no intention for future helicopter hazing in the Horse Butte Area.” See Exhibit 3, Judge
Lovell’s
May 15, 2000 Order, p. 4; see also Ex. 3, Order, p. 2.
Plaintiffs further allege that the effects of hazing bison with helicopters on
threatened, endangered and sensitive species was never appropriately analyzed in any
Environmental Assessment (EA), Environmental Impact Statement (EIS), Biological Assessment
or Biological Opinion, and therefore constitutes violations of the National Environmental Policy
Act (NEPA) and the Endangered Species Act.
Finally, Plaintiffs allege that helicopter hazing resulted in the disturbance and
displacement of trumpeter swans and other migratory birds from their habitat on the Madison Arm
of Hebgen Lake. Trumpeter swans are protected by the Migratory Bird Treaty Act. Such actions
