NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COTTONWOOD ENVIRONMENTAL No. 19-35150

LAW CENTER,

D.C. No. 2:18-cv-00012-SEH Plaintiff-Appellant,

v. MEMORANDUM*

DAVID BERNHARDT, in his official capacity as Acting Secretary of the Interior; et al.,

Defendants-Appellees,

FORT PECK TRIBES, The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation; INTERTRIBAL BUFFALO

COUNCIL,

Intervenor-Defendants- Appellees.

Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding

Argued and Submitted December 10, 2019 Seattle, Washington

Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff Cottonwood Environmental Law Center (“Cottonwood”) appeals

the dismissal with prejudice of its second amended complaint for failure to state a

claim on which relief can be granted. The second amended complaint pleads four

claims under the National Environmental Policy Act of 1969 (“NEPA”), each

seeking supplementation of the environmental impact statement for the Interagency

Bison Management Plan (“Management Plan”). We affirm in part, reverse in part,

and remand for further proceedings.

1. Cottonwood has adequately alleged facts demonstrating Article III

standing to pursue its claims against the federal defendants. As in Alliance for the

Wild Rockies v. USDA, 772 F.3d 592, 600 (9th Cir. 2014), Cottonwood’s NEPA

claims “arise[] from the Management Plan itself.” Because the Management Plan

and successive adaptive-management documents authorize the bison hunting and

hazing that are the source of Cottonwood’s alleged injury, “this injury is ‘fairly

traceable’ to the federal defendants’ actions in approving the Management Plan.”

Id. Cottonwood’s injury is redressable by the federal defendants because

Cottonwood seeks supplementation of the environmental impact statement for the

Management Plan, “a procedural right which could protect its alleged substantive

interests.” Id.

** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

2 2. We remand to the district court for a determination whether

Cottonwood has alleged facts demonstrating Article III standing to pursue its

NEPA claims against the State of Montana. “Usually, the federal government is the

only proper defendant in an action to compel compliance with NEPA.” Rattlesnake

Coal. v. EPA, 509 F.3d 1095, 1105 (9th Cir. 2007) (quoting Laub v. U.S. Dep’t of

Interior, 342 F.3d 1080, 1091–92 (9th Cir. 2003)). But “nonfederal defendants

may be enjoined if federal and state projects are sufficiently interrelated to

constitute a single federal action for NEPA purposes.” Laub, 342 F.3d at 1092

(alteration omitted) (quoting Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1397

(9th Cir. 1992)). Because the district court did not reach the “fact-intensive”

question whether the state and federal aspects of the Management Plan are

“sufficiently interrelated” to subject the State of Montana to NEPA’s requirements,

it should do so on remand. Id.

3. Counts 1 and 3 of the second amended complaint state a claim on

which relief can be granted. First, federal defendants do not contest that the

Management Plan constitutes an “ongoing” action “that could require

supplementation” under NEPA. Norton v. S. Utah Wilderness All. (SUWA), 542

U.S. 55, 73 (2004). Unlike the policy-setting documents at issue in SUWA, id. at

70–71, the Management Plan identifies specific actions that federal defendants will

3 take, such as capturing bison at particular sites and testing them for brucellosis.1

The plan also adopts an adaptive-management approach under which “future

management actions could be adjusted, based on feedback from implementation of

the proposed risk management actions.” Federal defendants’ active and dynamic

implementation of the Management Plan demonstrates ongoing federal action.

Second, no party contests that Count 1 plausibly alleges the existence of

information bearing on the Management Plan that is “both new and significant,”

thus requiring a supplemental environmental impact statement. See Protect Our

Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1040 (9th Cir. 2019). Count 3 also

plausibly alleges the existence of such information: it asserts that a 2017 study by

the National Academy of Sciences “indicates that the brucellosis that is being

spread to cattle in the Greater Yellowstone Area is traceable to elk, not bison.” The

second amended complaint also alleges that one goal of the Management Plan is to

“prevent[] brucellosis transmission from bison to cattle.” Because the recent study

may provide insight into the risk of brucellosis transmission from bison to cattle

and thus affect the plan’s focus on avoiding such transmission, Count 3 states a

plausible claim for supplementation under NEPA.

1 In determining whether the complaint states claims, we consider the Management Plan as well as the text of the second amended complaint. The complaint refers to the plan, which is central to Cottonwood’s claims. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

4 4. Counts 2 and 4 do not state plausible claims for NEPA

supplementation. Count 2 alleges that defendants are required to supplement the

environmental impact statement to address human “safety concerns” related to the

hazing of bison, but does not plausibly allege that the safety concerns are “new.”

Hazing has been authorized under the Management Plan since it was adopted in

2000. Cottonwood does not allege that defendants failed to consider human safety

concerns related to hazing as part of their initial NEPA analysis, nor does

Cottonwood allege that any recent incidents have given rise to new or different

safety concerns.

Count 4 alleges that defendants are required to supplement the

environmental impact statement because the National Park Service has “presented”

a new bison “population objective for the Park.” Because the second amended

complaint lacks allegations about whether the Park Service has actually updated

the population objective or how a revised population objective might affect bison

management, Count 4 does not plausibly allege the existence of “significant”

information requiring supplementation.

As there could be facts that would support Counts 2 and 4, we remand to the

district court to allow Cottonwood an opportunity to seek leave to amend its

complaint.

5. Cottonwood has not established Article III standing to support

5 paragraph E of its prayer for relief, relating to quarantine operations. The second

amended complaint contains no other mention of quarantine operations and pleads

no facts suggesting that the quarantine operations relate to the hunting and hazing

that are the source of Cottonwood’s alleged injuries. There could, however, be

facts that would support Cottonwood’s standing to request the relief sought in

paragraph E, so we remand to the district court to allow Cottonwood an

opportunity to seek leave to amend its complaint.2

AFFIRMED in part, REVERSED in part, and REMANDED.

2 We deny Cottonwood’s request to assign the case to a different judge on remand, as Cottonwood has not satisfied the criteria to establish that reassignment is appropriate. See United States v. Walker River Irrigation Dist., 890 F.3d 1161, 1173 (9th Cir. 2018) (explaining criteria).

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