ELR Citation: ELR 21194
No(s). 91-35283 (9th Cir. Apr 29, 1992)

The court holds that an environmental organization whose members suffered psychological injury from viewing the killing of bison in Montana has standing to sue, but the Eleventh Amendment to the U.S. Constitution bars the organization's federal action against Montana, and the U.S. Department of the Interior and Montana are not enjoined from adopting the 1990 bison management plan for Yellowstone National Park. The organization claims that federal and state officials violated the National Environmental Protection Act (NEPA) and the Montana Environmental Protection Act (MEPA) by failing to prepare an environmental impact statement (EIS) before adopting a plan to kill bison leaving Yellowstone National Park. The court first holds that the diminished opportunity for the organization's members to view the northern bison herd in Yellowstone establishes standing to challenge the 1990 bison management plan. The record establishes that the members also have standing because they suffered psychological distress from the direct sensory impact when they saw bison shot outside the park boundary.

The court next holds that the Eleventh Amendment bars the organization's NEPA and MEPA claims. The Eleventh Amendment bars an action alleging a violation of federal law if brought directly against a state or one of its agencies, and the record does not demonstrate that Montana consented to be sued in federal court for alleged violations of MEPA. Further, Montana has not received federal financial support to hunt and kill northern herd bison, and bison are not a threatened or endangered species protected by the Endangered Species Act. Thus, federal approval to kill bison on state land is not required. The court next holds that under the doctrine of res judicata, the organization's current claim challenging the adoption of the 1990 bison management plan without an EIS, is not precluded by a district court judgment in a 1985 action, which challenged the federal defendants' failure to prevent bison from leaving Yellowstone. Similarly, the court holds that the doctrine of collateral estoppel is inapplicable, because the 1985 action did not determine whether the 1990 interim plan for the management of cows, bulls, and calves that migrate from Yellowstone requires preparation of an EIS. Finally, the court upholds the district court's decision to deny a preliminary injunction. The court holds that the district court did not abuse its discretion in finding that the migrating Yellowstone bison pose a potential health risk from transmission of brucellosis, and that there is no immediate threat to the genetic uniqueness of the Yellowstone bison. The court holds that the balance of hardships tips in favor of the appellees. The herd's ability to increase its numbers demonstrates that the 1990 bison management plan will not have a significant impact on the environment, whereas failure to manage the migration of the herd will be detrimental to livestock in the area and the public health.

Counsel for Plaintiff-Appellant
W. Craig James
Sinner, Fawcett & Mauk
515 South Sixth St., Boise ID 83702
(208) 345-2654

Counsel for Defendants-Appellees
Andrew C. Mergen
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright and Fong,^* JJ.