11—Cold Mountain Cold Rivers Complaint
The FS’s response attempts to rationalize its failure to require the MDOL to
perform pre-monitoring by relying on language from the BA that states that “monitoring is
an adaptive process and changes may occur with coordination between DOL and USFS.”
SeeUSDA’s response to RMS’s sixty-day notice of intent to sue for violations of §§ 7 and
9 of the Endangered Species Act. 
However, MDOL is responsible for monitoring, and the
threshold objectives of monitoring include actions to “[d]etermine if the Horse Butte bald
eagle pair initiates nesting and incubation” and to “assess whether there are changes in
foraging/perching use areas along the Madison Arm of Hebgen Lake before, during and
after capture facility operations and construction.” See Appendix V to Appendix A of the
EA, p. 34 (emphasis added). If no pre-monitoring occurs, that is, if there is no yearly
environmental baseline established prior to initiating bison management activities in the
Horse Butte Area, then it is impossible to determine if and how the bison capture facility
impacts changes in eagle foraging and perching, nesting and incubation, and overall nest
The ESA requires that the USFWS must consider the environmental
baseline of all human activities in the project area, including actions in the area that have
already undergone ESA § 7 consultation. See 50 C.F.R. § 404.02. Foregoing bald eagle
monitoring is not consistent with the ESA, because it effectively precludes establishing an
the Madison Arm [of Hebgen Lake] is generally the only open water available on
Hebgen Lake during the winter and numerous eagles (nesting and migrating) forage
there. . . .
Bald eagle perches identified were primarily located along the Madison Arm and by
the mouth of the Madison River with Hebgen Lake.
See BA p. 16.
The BA restricts bison hazing activities along open waters of Madison Arm
of Hebgen Lake and the Madison River, stating that “[h]azing restrictions for the Horse
