Cold Mountain, Cold Rivers, Inc., Buffalo Field Campaign, and Ecology Center (collectively Cold Mountain) appealed a district court decision granting summary judgment to the United States Forest Service (USFS). Cold Mountain challenged a biological assessment by USFS, which reached a decision to issue a Finding of No Significant Impact (FONSI),[1] thus granting a permit to the Montana Department of Livestock (MDOL) allowing Montana to operate a bison capture and testing facility. Cold Mountain alleged that the permitted use resulted in a prohibited take of bald eagles, a threatened species protected by the Endangered Species Act (ESA).[2] The Ninth Circuit affirmed the district court decision, holding that: 1) Cold Mountain did not present genuine issues of fact to support their allegations of an ESA violation; 2) Cold Mountain's claim for re-initiation of formal consultation was newly raised, and thus not reviewable by the Ninth Circuit; and 3) USFS did not act in an arbitrary and capricious manner or abuse its discretion by failing to prepare either an Environmental Impact Statement
(EIS) or a supplementary Environmental Impact Statement pursuant to the National Environmental Policy Act (NEPA).[3]

In 1995, the USFS, other federal agencies, and MDOL formulated an Interim Bison Management Plan to safeguard Montana livestock from brucellosis, a disease carried by the wild bison within and around Yellowstone National Park. In 1999, in support of the plan, USFS approved a permit for MDOL to operate the Horse Butte Bison Capture Facility in the Gallatin National Forest just west of Yellowstone National Park. Prior to issuing the permit, USFS reviewed its action pursuant to NEPA.[4] The area impacted by the proposed capture facility, approximately fifteen square miles, included three bald eagle nesting sites. Bald eagles are a threatened species under the ESA.[5] USFS's Biological Assessment (BA), a requirement under its ESA obligations,[6] found that the cumulative effect of the facility, along with existing human activities, were "likely to adversely effect" the bald eagles in one of the three nesting sites (Ridge nest).[7] After transmitting the BA to FWS for consultation,[8] the USFS issued the EA agreeing with the assessment of potential impacts on the Ridge nest.

In response to the USFS's request for consultation, FWS issued a Biological Opinion (BiOp). The BiOp agreed with USFS's BA on likely impacts to the Ridge nest, but found that the project was "not likely to jeopardize the Pacific Region bald eagle population."[9] After incorporating mitigation measures limiting helicopter hazing, shooting, snowmobile use, and other human activities within the impact area, FWS issued an incidental take statement pursuant to the ESA, allowing the project to go forward.[10] Based upon the FWS BiOp and its own analysis, USFS then issued the FONSI and the permit.

Cold Mountain sued MDOL, USFS, and other federal defendants, alleging violation of the terms of the permit's restrictions on helicopter hazing activities, resulting in a take of protected bald eagles in violation of the ESA.[11] The complaint also alleged violations of NEPA,[12] the Migratory Bird Treaty Act,[13] the National Forest Management Act,[14] and the Administrative Procedure Act.[15] The district court granted summary judgment for MDOL on sovereign immunity grounds. It also granted summary judgment for the federal defendants, concluding that Cold Mountain had not established either a prohibited take of bald eagles or a violation of helicopter hazing restrictions. On appeal, Cold Mountain limited its challenge to alleged violations of the ESA and NEPA.

First, the Ninth Circuit addressed Cold Mountain's contention that USFS's failure to enforce the helicopter hazing restrictions in the permit resulted in a reproductive failure of the Ridge nest, and therefore a violation of the ESA.[16] Cold Mountain's claim alleged that USFS was liable for MDOL's violations of the permit. USFS disclaimed liability under such circumstances, noting that any claim making it vicariously liable for MDOL's actions would be unprecedented. The Ninth Circuit did not reach "the novel question of the [USFS]'s liability under the ESA for the actions of its permittees" because it found "no genuine issue for trial."[17] Cold Mountain's evidence consisted of materials purporting to demonstrate violation of the hazing restrictions along with generalized scientific studies on the impact of helicopter noise upon bald eagles. The Ninth Circuit determined that this evidence did not address the issue of whether the helicopter noise negatively impacted the reproductive abilities of the Ridge nest bald eagles. Therefore, the Ninth Circuit affirmed the district court's judgment on this issue, holding that Cold Mountain had failed to establish a causal link between MDOL's helicopter hazing activity and the Ridge nest reproduction failure.

The Ninth Circuit then dismissed Cold Mountain's claim that USFS was required to re-initiate formal consultation with FWS after the Ridge nest reproductive failure because that failure exceeded the permissible take under FWS's BiOp. The Ninth Circuit decided that Cold Mountain had raised the issue only as part of its broader ESA claim and not as a separate ground for relief at the district court. Since Cold Mountain's action did not qualify under any of the recognized exceptions to the general prohibition on raising new claims on appeal,[18] the Ninth Circuit held that Cold Mountain's re-initiation argument was a new claim and not appropriately raised on appeal.

Finally, the Ninth Circuit reviewed Cold Mountain's contention that USFS violated NEPA by failing to prepare an EIS before issuing the permit for the bison capturing facility or, alternatively, for failing to prepare a supplemental analysis under NEPA after the eagle nest reproductive failure.[19] Cold Mountain asserted that USFS was required to prepare an EIS because substantial controversy was generated by Cold Mountain and other groups prior to the issuance of the permit. The Ninth Circuit standard for "controversy" in a NEPA framework requires "a substantial dispute . . . as to size, nature, or effect."[20] However, the court held that USFS was not required to prepare an EIS before issuing the permit merely because the issue generated controversy.[21] The Ninth Circuit noted that Cold Mountain's claims about the controversial nature of the helicopter hazing issue were belied by the fact that none of the criticisms regarding helicopter hazing were raised during the comment period prior to USFS's issue of the FONSI and the permit. USFS analyzed the issues itself, consulted with FWS, and determined that the restrictions justified issuance of the FONSI. With these actions, the court was satisfied that USFS took the "hard look" required by NEPA[22] and provided the requisite convincing statement of reasons necessary to meet NEPA requirements.

The court then dismissed Cold Mountain's contention that a supplemental NEPA analysis was warranted by substantial changes or significant new information. The court held that, since Cold Mountain had not substantiated their claim that the helicopter hazing had led to the eagle nest reproductive failure, USFS's obligation under NEPA was fulfilled. In conclusion, the Ninth Circuit affirmed the decision of the district court granting summary judgment to USFS and other federal agency plaintiffs.