15—Cold Mountain Cold Rivers Complaint
The actions of all of the Defendants therefore violate the MBTA and its
implementing regulations.
COUNT FOUR—ADMINISTRATIVE PROCEDURE ACT
The preceding paragraphs are hereby realleged as if set forth in full hereunder.
All of the Counts alleged herein are reviewable pursuant to the Administrative
Procedures Act (APA) codified at 5 U.S.C. §§ 701-706. In addition to, and in conjunction with,
the statutory violations of the ESA,
the actions of the Montana Department of Livestock, Forest
Service, Fish and Wildlife Service, and National Park Service as alleged herein are arbitrary,
capricious and an abuse of discretion and, therefore, violate the APA.
Despite the Defendants’ statements that they had no intentions for future helicopter
hazing in the Horse Butte Area, the Defendants have systematically, consistently, and intentionally
hazed bison with helicopters in the Horse Butte Area and in the eagle closure areas.
The MDOL Annual Operation Plan approved by the Gallatin National Forest on
November 27, 2000 clearly contemplates helicopter hazing, and allows helicopter hazing in the
Horse Butte Area where it is prohibited by the terms and conditions of the Biological Opinion and
where the Defendants represented to the Court that they would not haze in the future.
COUNT FIVE--SPECIAL USE PERMIT VIOLATIONS
The preceding paragraphs are hereby realleged as if set forth in full hereunder.
The Gallatin National Forest issued a ten-year Special Use Permit for the operation
and maintenance of the Horse Butte Bison Capture Facility and associated hazing activities.
The Special Use Permit was issued by the Gallatin National Forest with the
authority of the U.S. Fish and Wildlife Service on the condition that the nondiscretionary terms
and conditions of the Biological Opinion be strictly adhered to.
The Defendants have continuously, systematically, and purposefully violated the
terms and conditions of the Special Use Permit.
