thank you for indulging our need for a short break our next argued cases cottonwood environmental law versus  and that is about the first cause of action about the tribal hunting could you talk about the issue are so the federal government has never done  for any hunting on federal land in terms of bison so the inner agency bison management plan says it wants to use hunting as a preferred method to manage bison although they've never analyzed that the property clause gives congress the power to protect wildlife on the public lands they have the proper power but i thought that the thing is that they don't i mean they've handed over certain i know  other cases there are certain kinds of wildlife issues that are they have just made the problems of the state in so in this case here are the federal government and state government implemented operating procedures  norton that's not really the argument that's being asserted to understand now and now the argument is well well the federal government can't really doesn't cause it and can't redress it because it's montana that approves the hunting so the argument you've just made as to that nd point  and i don't mean to keep going on that you've got time but the discord actually came down on this on a different ground sides and yes in that from a matter of common sense it seems like the forest service should be able to honor somebody thought that there was sufficient federal connection to have to have any but now says absolutely and it one point he said we may have to revisit this hunt if we go forward with the hunt in there now going forward with the hunt for throwing non tribal and they have not done the need analysis under your slightly revised clarification why are you suing montana at all well and what's your authority to do so the supremacy clause says the federal courts can enjoy nonfederal act or if the ball state and federal act or implement one action in this case the state of montana and the federal government are hazing bison out of for service land back in the yellowstone park and then they both jointly quarantine bison slaughter bison together as in the operating procedures for twenty seven thousand but you're greening the quarantining in the hazing occur on montana land as distinct  along with the federal government saying we're going to implement the i b m p c through this through these procedure for nearly the only proper defendant in a need to actually use the federal government because only it has a direct responsibility to perform the analysis so is fur is just preparing me a melon since why isn't the federal government the only proper party well we're also what i'm sorry what what is it if it's not that they have to provide to devise a new supplemental in i a s because of the possibility of work more bison in the par than what is your cla it's all it's all new but i apologize i i misunderstood in your reply brief on page twelve you cite funder for animals as the best authority for saying this is one integrated plan yes sure but in that case the court found that there wasn't the state wasn't lab correct correct so it this isn't something where montana needs approval and it isn't something that's all funded by the u s government correct so what's the hook so you said this isn't a case where mine to me is approval nepa and had to do as a similar document anyway so they were together going to do the document that was served both purposes is that accurate i believe so you're right so what is the maybe ask the same question from a different angle if for the sake of this question we were to conclude that the federal government has to prepare a supplemental us what difference would it make whether montana is or isn't part of a lawsuit at that point they could be brought in to help with the e i a s if the federal government wants them to so what what more would have to be done well we're seeking to enjoin them while they prepare the us open even elsa's were concerned that even if we can enjoying the federal government from hazing yellow somebody is in on for service land that if the state is not a party then they can continue hazing bison on for service land so your i'm sorry i don't he's been i don't really follow that if if we said federal government you may not haze or allow the hazing of these animals on federal land why aren't they a sufficient defend because the state would then as the force or rescind his brief the state would then be able to do whatever it wants on state land yeah but we're only talking about federal land in this case well i know that that's why i'm asking the question why the federal government isn't a sufficient defendant if it were enjoying from either hazing or permitting the hazing on federal land why isn't that sufficient if it's all federal land from my understanding is that your concern is with the hunt as i understand it primarily the hunt is not happening on federal out as happened in federal land but not and not in park right that you can increase the population of yellowstone bison if you do that you don't have to slaughter them all this is the how does the warranty issue hook up to the supplemental e i a s in the harm i know but that was contemplated by the original plan what's new about it there's new information new information that's relevant to that in what way yeah i'm having a problem the new information is that there can be an increased number of bi also national and therefore in therefore we don't have to quarantine as many or slaughters many but there are only in the parts some of the time they're still going out yeah but the plan the emergency bison management plan covers the national park as well as a four service land ok and so that population number that limit three thousand is set by the or from the intervenor tribes i'm going to take nine minutes or try to take nine minutes and mr graves will take six so let me ask you at the outset it seemed to me firmly complaint and looking at the inner agency bison management plan in the complaint it seems to me there are two new things going on in the st cause of action there is a description of new tribal hunting which i think means hunting by different tribes as i understood the complaint or it may mean just more i wasn't clear on that and then the new studies showing that it's actually information i don't think so your honor but we haven't we didn't get to the marriage those are the merits questions and i don't think we're at the merits here that we win the argument on the merits question is whether there are sufficient allegations right and i'm get it is that fair i guess the st question is whether there's standing and then  the nd question is whether there are those rather than whether those allegations are would be sufficient to state a claim under me and our argument is that the new information about  but in terms of the standing question and you're representing the government the federal government the federal agency all right and tell me why there is no standing because they have not met their burden to show causation and redress ability the injury that they're claiming here is from the hunt and the hazing both of which are actions of the state and the tribes it's true that this is on federal land to licensees would have to get approval from the state of montana and not from the federal government that the the the basic operating rules here are that states manage wildlife on federal land within the boundaries of the state even on federal land unless there is some superseding federal regulation of that wildlife so in the grizzly bear case threatened species and that imposes a set of federal requirements on the management of those those animals but but bison are not protected species there like any other i know life's to just issue really hasn't been briefed and i know it's been briefed in other cases the fact that the as i understand the federal government has ceded the it's hard to the states and could take it back but that's not the directly relevant question because nobody is asking you to take it back and even has been briefed as such well yes i think we have when you argue in our brief that it the state of montana that authorizes the hunt and manages t you don't deal with the fact that this is federal land as to which they're doing that by the grace of the federal government essentially no there well not by grace of any federal government decision that's being challenged yeah i thought i was saying so and there's an issue about you know exactly how far back you go in the connection to the issue but leaving that aside this plan when it we're taking a now i know you are and i appreciate that but then i guess i really start and stop with alliance it seems like it's indistinguishable we've already addressed the fact when there's a cooperative dynamic plan that that could lead could redress there harm even if montana is running the show because if the federal government concluded that this new information about the elk and about the larger size then federal government in this cooperative dynamic world might convince its state partners to not do so that's the logic and i thought that's sort of what we held distinctly under the nepa analysis in the alliance case well a key factor in alliance is that is that the species that was being of alliance it does not mention endangered species or that being a factor at all the only the only reference to it is in the beginning sentence in a description of the federal defendant's argument the actual holding that says the procedural injury is redressal by the federal defendants they want i'm looking at page six  honor the paragraph that begins at six o six near the end of that paragraph an impact on a threatened or endangered species is a factor that can give rise to the requirement to perform a supplemental yes i guess that subset that is that that is  that that's why i asked the question at the beginning which had to do with the new information about claims one and three why that isn't sufficient to require a supplemental yeah us our submission your honor is that the allegations in the complaint there are too too thin that if you look at the complaint if you look at the cottonwoods brief it's that what they're seeking here is for bison to be allowed to travel farther into montana they say that on page three of their brief these concerns about quarantine are not addressed in their briefs the word although you have this very extensive agreement and basically joint management plan which reads as if there are agreements between the various parties and that there they're interested pendent and propositions i am going to do this and you're going to do that and the suggestion is if i don't to this you may not do that right i so so now you're trying to say that even though this document reads as if all the part i gather there was a great deal of dissension before this agreement was entered into and that the agreement basically settled disputes between the parties about who could do what so if this agreement now as you're representing it is simply  set of declarations of what everybody could do anyway and why do we have the agreement well i think that the green the agreement was adopted in settlement of litigation and it was intended to coordinate the separate authorities of these separate sovereigns the sovereigns authorities to manage it within their particular jurisdiction doesn't come from this agreement it comes from their statutory or constitutional authority or an organic  it comes from other places the the fact that the agreement provides this overall umbrella doesn't mean that everything that happens under the agreement is federal action or that everything that happens under the agreement is state action and i think the allegations of the complaint here and mr meyers answers to your question suggests that he recognizes that the state can go please the court my name is rafe gray bill ever present the governor of montana in answer to judge a person's question the i b m p came about in response to decades of litigation around these complicated jurisdictional issues that come up where you've got absolute federal control in yellowstone national park but when you leave the park whether it's on forest service land private land or state land you've got a well established state sovereign police power and that's from the one thousand nine hundred and two case fun for animals that says the state has primary jurisdiction and control and wildlife so the i b m p c is as a federal attorney mention it doesn't independently confer authority but doesn't he came out after that decision correct correct and i think with the i in that document so when the state of montana for us and market is that they're going to do it to get well i think it's i think the best way to think of the i b m p is an agreement to coordinate to say litigation didn't work for dealing with these issues around disease memorandum of understanding specifies at the end everybody will work to ensure that nepa is complied with so that's that's one of the pieces of understanding and i guess my question is if if a supplemental e i a else is to be required it's not from the state of montana from the federal government but as i understand it montana has pledged to cooperate with that process a sad affair understanding yes and that's because montana has independent state law bla k sions to study environmental consequences of its actions one can certainly imagine a case in which cottonwood allege a state law montana environmental policy act claim alleging a duty of supplement after three complaints after jurisdictional discovery and a year of motions practice that is in the complaint that the court looks at whether relief you're asking for you're not trying to say that yes is required you're trying to say your client shouldn't be in this case correct we're trying to say that the way that both the way that the i b m p partners talked about their respective need and montana environmental policy act responsibilities one and two the way that congress wrote and the way this court's applied it both suggested in this case it's not need there would compel the state of montana's action in light of the fact that the district court just had a highly truncated ruling depending on an entirely different ground that no one's defending wouldn't most we remain to find out whether your representations about this partnership as one of just shared goals is correct or if in fact looking closely a inquiry it is one where federal resources are being given to montana this is all beyond what the district court explored but respectfully no for two reasons one because it's jurisdictional and that's the rattlesnake case where this court said essentially when you allege to claim against someone for whom it does not apply that's a jurisdictional dismissal don't worry there was it does it constitute a single federal action and because the district court went off an entirely different theory we've got no answer to that you're representing that it's this loose agreement three times a year shared goals they're describing it is much more intricate and the critical questions are ones of joint bent your ship approval and financing but they just court never answered those honor i don't think there is really a dispute between the two parties here as to the level of federal control i think all that's left for the court to do is determine are the standards set out in the lob case the rattlesnake case every time this court exam allowed us to remain for these very facts to be determined the questions this court asks when it determines whether something federalized as a state action nowhere in any of those lines of questions as anything on these allegations here suggest that montana has been federalized and i don't  contract i don't know that i'd characterize the contract as is the basis of the claim below for why montana could be sued i think the claim the claim below is frankly advance is a different standard than the one this court's adopted it says any time the state and federal government work together nepa obligations can graft on to the state and that's simply not the standard this court has ever adopted looking at the place one doesn't have to say that here because there is an agreement aster this very issue correct and i shall therefore you don't have to say just because they're cooperating in the sky they're not cooperating in the sky they have made a specific agreement to participate in this particular thing correct your honor and the language you read actually montana says as we commit to work together in the i b m p activities when we do so the source of our environmental study responsibilities is one of state law so let me ask you a similar question to the one i asked opposing counsel if the federal defendants were the only defendants here and if we were to say or if a court were to say they are standing there is new information that requires a supplemental e i a s and there is an injunction against the federal defendants from either hazing or killing or allowing the hazing or killing eisen on federal lands that would bind montana to you no sense wouldn't want i think it wouldn't be in montana through the i b m p c so the answer that opposing counsel gave you that same question was you've got to keep montana in this case because montana is going to keep doing the same stuff unless you do and i think it's that very point that it's independent sources of florida not the i b m p c so you think that montana continues to have the authority to kill bison on federal land even if the federal government is told there shall be no more on federal land so the federal government could say yes that's a yes or no yes so you think you can keep killing them on federal land even if the federal government is told you shall not allow this on federal land and that's the fun for animals case so i think the federal government as a practical matter could close off land and deny access to montana hunters that something could happen but it's well established in the law this court in the supreme court that wildlife what do they have to do that the if that were the nature of an injunction not to not to allow the killing wouldn't they be obliged to forbid montana hunters from coming on the federal land correct i think that would limit the geographic scope of  from federal lands but as as co counsel mentioned the land in zone two is a mixture of state federal and private land and so and that's i think a different question from the question of from what authority does the state authorize have no interest in whether they're hunting curs here or there on federal lands and i mean that's really the core question that's being asked to be addressed yes around and i see my excite if i can answer so the question of where the zone to boundaries ultimately drawn is something that gets talked about i b m p meetings as these partners get together and coordinate you know who's going to do what north of the border who's going to do what south exactly that's and on your representation the theme park service and the forest service going to anything north of the border but that can't be right because they're talking about it all the time why so the actual legal authority that says where the border is and that establishes the state hunt is a state of montana's fish and wildlife commission all right betty but but but the federal government has an interest in these bison right and these particular bison because they're out there often and in the park and they're on the rise and federal land and why would they be talking at all if the only thing they can do is just watch them leave the park and have nothing else to say about it i think it would as a shared policy interest in the bison and certainly the federal government does as they leave the park but it's clearly established both in the i b m p and the case of this court that the legal interest sort of with the federal government while they're litigating because the federal government thought they had some interest well i think that all parties share certain shared interests for example disease control conservation interests and the parties found in their experience that konami concerns the u s forest service has particular expertise knowledge of a responsibility for habitat a national forest lands outside yellowstone national park according to the agreement and specific contributions include but are not limited to natural resources bond please dear and then we'll call it time time for that so far so i think i think the fact of interconnection is is clearly established at least these are issues that overlay i think the question for this court is what is the statute you invoke to bring the governor of montana into court to say you have a duty a supplement and i think the position of conduit is there is enough here that need to can do that for you and i think if you go to this court's case law from loud to rattlesnake every time this court asked that question the touchstone is is there federal control and i don't think the parties dispute that the governor montana simply is not subject to federal control when it comes to issues like hunting treaty tribes exercising their rights or hazing in the state of montana thank you counsel thank you for relief in the luan vs fun for animals th circuit case the th circuit said it didn't have jurisdiction over state of montana because montana has not entered into a partnership or joint venture that involves the receipt of goods from a explore the never daily contrasting allegations you've got about this this did in the district court never even asked about whether this is an ongoing unity action it was like a sewer sponte dismissal without ever giving us a chance to talk about it and so we were a little dumbfounded when we got this decision there was another group in montana right now in front of a different district court judge who's challenging the i b m p c underneath analysis and they asked for an injunction to stop the hot and the judge didn't talk about whether it's an ongoing agency action and talk about federal control or any of that just denied the injunction and i thought well and so that goes right to the point that  submit to them appreciate the arguments from all of you