Cold Mountain, et al. v. David P. Garber, et al.

We must decide whether the United States Forest Service's
issuance of a permit to operate a bison capture facility in
Montana violated the Endangered Species Act or the National
Environmental Policy Act.

I
On the precipice of extinction in the early twentieth century,
the Yellowstone bison herd has been pulled back from
the brink by careful management.1 Yet the annual migration
of bison out of Yellowstone National Park's western boundary
poses risks to the health of nearby livestock in Montana.
See Fund for Animals, Inc. v. Lujan, 794 F. Supp. 1015, 1018
(D. Mont. 1991). The bison may carry brucellosis, a bacterial
organism that causes female bison to abort fetuses. Id. at
1019. Brucellosis causes sterility and abortions in livestock
and undulant fever in humans. Id. There is no vaccine or cure
for brucellosis, and more than $1 billion has been spent on
eradication efforts nationwide. Id. More than 50 percent of the
Yellowstone herd tested positive for brucellosis in 1988. Id.
After a thirty-year, $30-million effort, Montana eradicated
brucellosis in 1985. Id. Because the state is brucellosis-free,
it may ship livestock out of state without testing, saving $1 to
$2 million per year. Id. Montana requires that all untested
brucellosis-exposed bison that enter the state be destroyed if
they pose a transmission risk.

In order to protect Montana's brucellosis-free status while

1The herd numbered less than 50 in 1902, but now consists of around
4,000 animals. See http://www.nps.gov/yell/nature/animals/bison/
bison.html; Greater Yellowstone Coalition v. Babbitt, 952 F. Supp. 1435,
1438 (D. Mont. 1996).

10747 COLD MOUNTAIN v. GARBER

maintaining a wild, free-ranging population of bison and minimizing
destruction, the Montana Department of Livestock
("MDOL"), other state agencies, and the National Park Service,
the United States Forest Service ("Forest Service"), and
other federal agencies, together formulated an Interim Bison
Management Plan (the "Bison Plan") in 1995.2 The Bison
Plan provides for monitoring, brucellosis testing, removing
infected and exposed bison, and the "hazing" - i.e., herding -
of bison back into Yellowstone. Hazing can be done in a variety
of ways: on foot, on horseback, on snowmobiles, on allterrain
vehicles, on motorcycles, in helicopters; it also sometimes
involves the shooting of "cracker shells" to induce the
bison to move.

As part of its effort to comply with the Bison Plan, the
MDOL applied in 1998 for a ten-year Special Use Permit (the
"Permit") from the Forest Service to operate a bison-testing
facility in the Gallatin National Forest, just outside Yellowstone's
western boundary, in an area north of the Madison
Arm of Hebgen Lake known as the Horse Butte area. The
facility, called the Horse Butte Bison Capture Facility, is a
temporary structure, consisting of several holding pens and
work areas. Although the primary facility measures approximately
100 by 300 feet, the entire facility occupies one to two
acres of land. The Permit authorized the MDOL to operate the
capture facility from November 1 to April 30.

Before issuing the Permit, the Forest Service prepared a
Biological Assessment ("BA") in accordance with its obligations
under the Endangered Species Act ("ESA"). See 16
U.S.C. § 1536(c). That document assessed what it deemed the
"cumulative effects area" for the proposed capture facility:
approximately 15 square miles of public and private lands
"contained within the boundary north of the Madison Arm of
Hebgen Lake and the Madison River, east of Hebgen Lake,

2The Interim Bison Management Plan has since been replaced by the
Interagency Bison Management Plan in 2000.

10748 COLD MOUNTAIN v. GARBER

south of the Grayling Arm of Hebgen Lake and Cougar
Creek, and west of Y[ellowstone] N[ational] P[ark] . . . . generally
described as the Horse Butte/Flats area."
Within this area are three bald eagle nests, denominated
Horse Butte, Ridge, and Narrows. Bald eagles are considered
"threatened" for purposes of the ESA. See 50 C.F.R. § 17.11.
Under the Montana Bald Eagle Management Plan and the
Greater Yellowstone Bald Eagle Management Plan, areas
within a .25-mile and a .5-mile radius of active and alternative
nests are known respectively as Zone I and Zone II. The eagle
management plans restrict human activity in these zones.
Because the preferred site for the proposed capture facility
was within Zone II of the Horse Butte nest, the BA particularly
examined the possible effects of the facility's operation
on that nest. The Forest Service ultimately concluded that the
cumulative effects of existing human activities, the use of
snowmobiles for recreation and hazing, and the operation of
the facility necessitated a finding that the facility "may affect/
likely to adversely effect" bald eagles in the Horse Butte/Flats
area.

Acting under its obligation to consult formally with the
United States Fish and Wildlife Service ("USFWS"), the Forest
Service transmitted the BA to the USFWS on November
30, 1998. See 50 C.F.R. § 402.14(a). The Forest Service then
issued an Environmental Assessment ("EA") of the effects of
the proposed Permit on December 14, 1998. The Forest Service
again concluded, in its EA, that the Horse Butte nest site
might be affected by increased levels of human activity resulting
from the capture facility's operation.

The USFWS in turn issued a Biological Opinion ("BiOp")
on December 18, 1998. In the BiOp, the USFWS determined
that the capture facility "was not likely to jeopardize the
Pacific region bald eagle population[.]" But the USFWS
agreed with the Forest Service that some eagles "may [be]

10749 COLD MOUNTAIN v. GARBER

adversely affect[ed.]" As part of the BiOp, therefore, the
USFWS issued an Incidental Take Statement (the "Statement").
The Statement anticipated that the capture facility's
operation might lead to the reproductive failure of the Horse
Butte nest and thus involve a "take" of threatened bald eagles
under § 9 of the ESA. See 16 U.S.C. § 1538(a)(1)(B) (making
it unlawful for any person to "take any such [listed] species
within the United States"). Under the ESA, a take committed
pursuant to an incidental take statement is not considered a
prohibited taking. See 16 U.S.C. § 1536(o)(2). As a nondiscretionary
term and condition of the Statement, the
USFWS specifically incorporated bison hazing requirements
appended to the EA and repeated earlier in the BiOp.
These restrictions banned helicopter hazing in Zones I and
II from February 1 to August 15. Shooting was also prohibited
in Zone I. During snowmobile season, hazing activities in
Zone I were allowed only on designated trails, south of Forest
Road 610, and by permission of the local Gallatin Forest
Ranger District. Off-road and -trail hazing by snowmobile
and horseback was permitted in Zone II, although it was to be
kept to a minimum. ATVs, motorcycles, and shooting were
permitted only along Forest Road 610 and the lookout road.
Outside of Zones I and II, helicopter hazing was prohibited in
the "Horse Butte area."

The Forest Service issued a Decision Notice and a Finding
of No Significant Impact ("FONSI") on January 29, 1999, and
awarded the Permit to the MDOL on March 17, 1999.
Convinced that the bison hazing restrictions were being
violated by the MDOL, Cold Mountain, Cold Rivers, Inc., a
nonprofit environmental and human rights organization based
in Missoula, Montana, joined by the Buffalo Field Campaign
and the Ecology Center, Inc. (collectively "Cold Mountain"),
sent a Notice of Intent to Sue for violations of the ESA to
state and federal officials on April 27, 2000.3 The Forest Ser-

3The ESA's citizen-suit provision requires plaintiffs to give 60-days
written notice to federal agencies before commencing an action. See 16

10750 COLD MOUNTAIN v. GARBER

vice investigated Cold Mountain's allegations of hazing violations,
but determined that they were unfounded.
Cold Mountain then sued the MDOL, the Forest Service,
the National Park Service, and various federal officers in
United States District Court for the District of Montana in
May 2001. Cold Mountain's complaint alleged that the state
and federal defendants had consistently violated the terms of
the Permit and the Statement, resulting in a take of protected
bald eagles under § 9 of the ESA. The complaint also faulted
the federal defendants for not conducting adequate environmental
analysis under the National Environmental Policy Act
("NEPA"), and alleged violations of the Migratory Bird
Treaty Act ("MBTA"), the Administrative Procedures Act
("APA") itself, the National Forest Management Act
("NFMA"), and the Permit. Cold Mountain asked the district
court (1) to declare that the relevant statutes had been violated;
(2) to void the Permit; (3) to enjoin the operation of the
capture facility; (4) to require the federal agencies to conduct
analysis under the ESA and NEPA; or, alternatively, (5) to
enforce the terms of the BiOp and to prohibit helicopter hazing
in the Horse Butte area.

The district court granted summary judgment for the state
and federal defendants on March 28, 2003. Specifically, the
district court concluded that no prohibited take of bald eagles
had been established. The court also agreed with the Forest
Service's conclusion that the restrictions on helicopter hazing
had not been violated. The court determined that the Forest
Service's EA was adequate, that the Service's decision not to
prepare an Environmental Impact Statement was reasonable,
and that NEPA was therefore not violated. The court granted
summary judgment to the MDOL on sovereign immunity
U.S.C. § 1540(g)(2)(A). The requirement is meant to give agencies a
chance to investigate and cure alleged ESA violations. See Marbled Murrelet
v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996).

10751 COLD MOUNTAIN v. GARBER

grounds.4 And the court also ruled in favor of the federal
defendants on the MBTA, NFMA, and APA counts.5 Cold
Mountain's timely appeal followed.

II

A

[1] The ESA makes it illegal to "take any such [listed
endangered] species within the United States." 16 U.S.C.
§ 1538(a)(1)(B). The statute defines "take" to mean "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct[,]" id.
§ 1532(19), and includes federal agencies, officers, and
employees among those defined as "persons" liable for a taking,
id. § 1532(13). Implementing regulations promulgated by
the Secretary of the Interior further define "harass" as "an
intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent
as to significantly disrupt normal behavioral patterns which
include, but are not limited to, breeding, feeding, or sheltering."
50 C.F.R. § 17.3.

Cold Mountain first contends that the Forest Service's failure
to enforce the hazing restrictions in the BiOp's Incidental
Take Statement amounts to a prohibited take of bald eagles in
violation of the ESA. Pointing to eyewitness affidavits, videotape
footage, and photographs that purport to demonstrate
violations of the hazing restrictions by the MDOL, Cold
Mountain alleges that these violations resulted in the reproductive
failure of the Ridge nest in 2000. The Forest Service's
omission in failing to hold the MDOL to the restrictions on
helicopter and other methods of hazing, Cold Mountain

4On Cold Mountain's motion, the MDOL was voluntarily dismissed
from this appeal on August 20, 2003.

5Cold Mountain does not appeal these rulings.

10752 COLD MOUNTAIN v. GARBER

asserts, has thus led to the "harassment" of bald eagles in the
Horse Butte area.

The federal defendants respond by pointing out that any
alleged hazing violations were committed by the MDOL,
which is no longer a party to this appeal. Thus, even assuming
for the sake of argument that a take has occurred (which the
federal defendants strongly dispute), it should be charged to
the account of the MDOL, not the Forest Service or any other
federal agency. In sum, the federal defendants object to what
they characterize as an unprecedented theory of liability under
the ESA, in which the Forest Service is vicariously liable for
the prohibited takes of its permittee, the MDOL.

[2] We need not reach the novel question of the Forest Service's
liability under the ESA for the actions of its permittees,
however, because we are satisfied that there is no genuine
issue for trial. See Far Out Prods., Inc. v. Oskar, 247 F.3d
986, 992 (9th Cir. 2001) ("An issue is ‘genuine' only if there
is sufficient evidence for a reasonable fact finder to find for
the non-moving party.") (citation omitted). Cold Mountain
has failed to establish a causal link between any alleged hazing
violations and the Ridge nest failure. See Pyramid Lake
Paiute Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1420
(9th Cir. 1990) ("The evidence does not establish that any one
year's diversions of Project water has actually caused the cuiui's
spawning problems.") (emphasis added); cf. Marbled
Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996) ("A
reasonably certain threat of imminent harm to a protected species
is sufficient for issuance of an injunction under section 9
of the ESA."); Forest Conservation Council v. Rosboro Lumber
Co., 50 F.3d 781, 787 (9th Cir. 1995) (discussing Pyramid
Lake in the context of a preliminary injunction claim and
explaining that "the defect of the plaintiff's claim lay in the
lack of a causal connection between the challenged action and
the alleged injury to the protected species"). Cold Mountain
offers only scientific studies (primarily in the form of
abstracts) that suggest that noise from helicopters causes

10753 COLD MOUNTAIN v. GARBER

eagles to react by turning their heads or flying from a perch.
But the studies do not appear to have actually studied or measured
the effects of aircraft noise on the reproductive success
of bald eagles. And the record is bereft of specific evidence
linking the Ridge nest failure to the alleged hazing violations.6
[3] Because the record discloses no genuine issue of material
fact requiring trial, we affirm the district court's grant of
summary judgment on Cold Mountain's take claim.

B

Cold Mountain next argues that the Forest Service was
required to reinitiate formal consultation with the USFWS
after the Ridge nest's reproductive failure in 2000 because
that failure exceeded the permissible take under the Statement.
Reinitiation is also required, Cold Mountain continues,
because it has provided "new information" in the form of affidavits
outlining previously unconsidered effects of hazing
operations on bald eagles.

6We note also the analytically sound underpinnings of the district
court's decision. The court noted that the Forest Service had investigated
Cold Mountain's allegations of hazing violations and deemed them
unfounded. Citing the Forest Service's list of possible reasons for the failure
of the Ridge nest, the court further explained that the Horse Butte and
Ridge nests had a mixed reproductive history, and that many factors unrelated
to bison hazing could have contributed to the reproductive failure of
the Ridge nest. Given the absence of evidence in the record suggesting
that the hazing restrictions were indeed violated, we agree with the district
court that the Forest Service's determination was reasonable. Such determinations
involving the factual expertise of agencies can be set aside only
if contrary to the highly deferential standard of review embodied in the
Administrative Procedures Act ("APA"): "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A); see also Ariz. Cattle Growers' Ass'n v. U.S. Fish and Wildlife
Serv., 273 F.3d 1229, 1235-36 (9th Cir. 2001) (claims under ESA governed
by APA). Here, nothing in the record calls into question the Forest
Service's application of its factual expertise.

10754 COLD MOUNTAIN v. GARBER

The federal defendants respond that Cold Mountain did not
raise this claim before the district court, which therefore did
not rule on the issue.

The federal defendants' position finds support in the
record, which reveals that Cold Mountain only mentioned the
Forest Service's failure to reinitiate consultation as part of a
broader claim that any violation of the Statement constituted
a taking per se under the ESA. The reinitiation claim was thus
not presented by Cold Mountain or evaluated by the district
court as a freestanding request for relief. Indeed, Cold Mountain's
amended complaint and other pleadings nowhere allege
that the Forest Service should have reinitiated consultation
with the USFWS after the Ridge nest failure. Understandably,
then, the district court did not evaluate the failure to reinitiate
consultation as itself a separate violation - either procedural
or substantive - of the ESA.

In general, we do not consider an issue raised for the first
time on appeal. See Foti v. City of Menlo Park, 146 F.3d 629,
638 (9th Cir. 1998); Bolker v. Comm'r, 760 F.2d 1039, 1042
(9th Cir. 1985). We may invoke our discretion to hear previously
unconsidered claims under three recognized exceptions:
[1][I]n the "exceptional" case in which review is
necessary to prevent a miscarriage of justice or to
preserve the integrity of the judicial process, [2]
when a new issue arises while appeal is pending
because of a change in the law, [3] or when the issue
presented is purely one of law and either does not
depend on the factual record developed below, or the
pertinent record has been fully developed.

Bolker, 760 F.2d at 1042 (citations omitted). Here, the first
two exceptions are inapplicable, and the third exception counsels
strongly against review. Because Cold Mountain did not
squarely present the reinitiation claim to the district court, the
factual record is undeveloped, showing only that the Forest

10755 COLD MOUNTAIN v. GARBER

Service appears to have begun the process of determining
whether formal reinitiation was required. Given the incompleteness
of the underlying record, we decline to address the
hitherto unaired reinitiation claim.

C

Cold Mountain next argues that, because of the project's
"controversial" nature and potentially detrimental environmental
impacts, the Forest Service violated NEPA by failing
to prepare an Environmental Impact Statement ("EIS") before
issuing the Permit and FONSI for the bison capture facility.

It further contends that new information regarding violations
of the hazing restrictions outlined in the Permit and the failure
of the Ridge nest require the Forest Service to prepare a supplemental
NEPA analysis.

The federal defendants respond that mere opposition is
insufficient to show that the bison capture project was so controversial
as to require an EIS, and that the initial EA and
FONSI adequately analyzed the environmental impact of the
proposed capture facility. They also argue that supplemental
NEPA analysis is not required here because there has been no
demonstration of a significant environmental impact warranting
agency reexamination. No new information or substantially
changed circumstances have been established, the
federal defendants continue, and Cold Mountain has particularly
failed - both before the issuance of the Permit and after
- to introduce scientific evidence compelling supplemental
analysis. Finally, they point out that any "major Federal
action" was completed upon issuance of the Permit and the
FONSI, thereby eliminating the Forest Service's obligation
under NEPA to prepare supplemental analyses.

1

[4] NEPA mandates that federal agencies prepare an EIS
for major federal actions "significantly affecting the quality of

10756 COLD MOUNTAIN v. GARBER

the human environment." 42 U.S.C. § 4332(2)(C). NEPA
"does not mandate particular substantive results, but instead
imposes only procedural requirements." Laguna Greenbelt,
Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 523 (9th Cir.
1994); see also Marsh v. Oregon Natural Res. Council, 490
U.S. 360, 371 (1989). An agency must therefore take a "hard
look" at the environmental consequences of its actions. See
Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d
1108, 1124 (9th Cir. 2004). NEPA also imposes on federal
agencies an ongoing duty to issue supplemental environmental
analyses. See Price Rd. Neighborhood Ass'n, Inc. v. U.S.
Dep't of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997). An
agency's decision not to prepare an EIS or other supplemental
NEPA analysis may be overturned only if it was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law. See Idaho Sporting Cong. Inc. v. Alexander,
222 F.3d 562, 566 n.2 (9th Cir. 2000); Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.
1998).

[5] Regulations promulgated by the Council on Environmental
Quality ("CEQ") outline when an agency must prepare
a supplemental analysis - specifically, when the agency
"makes substantial changes in the proposed action that are relevant
to environmental concerns"; or when "significant new
circumstances or information" arise. 40 C.F.R.
§ 1502.9(c)(1)(i) and (ii). The regulations further define "significantly"
in NEPA § 102 as calling for an analysis of both
"context" and "intensity." 40 C.F.R. § 1508.27. "Context" is
"society as a whole (human, national), the affected region, the
affected interests, and the locality." 40 C.F.R. § 1508.27(a).
Intensity "refers to the severity of impact," and includes the
following factors, among others:

(3) Unique characteristics of the geographic area
such as proximity to historic or cultural resources,
park lands, prime farmlands, wetlands, wild and scenic
rivers, or ecologically critical areas.

10757 COLD MOUNTAIN v. GARBER

(4) The degree to which the effects on the quality
of the human environment are likely to be highly
controversial.

(5) The degree to which the possible effects on the
human environment are highly uncertain or involve
unique or unknown risks.

. . .

(7) Whether the action is related to other actions
with individually insignificant but cumulatively significant
impacts.

. . .

(9) The degree to which the action may adversely
affect an endangered or threatened species or its habitat

. . . .

40 C.F.R. § 1508.27(b).

2

Cold Mountain cites the factors listed above to argue that
the environmental impact of the bison capture facility was so
significant as to warrant the issuance of an EIS in the first
instance. It points particularly to factors (4) and (5), contending
that the bison project was both highly controversial - as
shown by the opposition and criticism of Cold Mountain and
other environmental groups - and highly uncertain - because
the individual and cumulative impacts of hazing were not
assessed.

[6] We have deemed a federal action "controversial if a
substantial dispute exists as to [its] size, nature, or effect."
Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir.
1992) (internal quotation and emphasis omitted, alteration in

10758 COLD MOUNTAIN v. GARBER

original). But the existence of opposition does not automatically
render a project controversial. Wetlands Action Network
v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1122 (9th Cir.
2000). And a controversy cannot be established post hoc by
evidence that was not before the agency at the time of its
action. Franklin, 14 F.3d at 1334.

[7] Cold Mountain points to the numerous criticisms
directed at the proposed facility by it and other groups and
individuals prior to the release of the FONSI and the issuance
of the Permit. Cold Mountain claims that these comments
drew attention to the potential impact of helicopter hazing, but
the record actually fails to disclose any reference to helicopter
hazing - although the noise associated with the operation of
the facility and snowmobile hazing was faulted by opponents
of the project.7 The record reveals, moreover, that the Forest
Service and USFWS accordingly evaluated the cumulative
effects of human activities - including non-helicopter hazing
- over the entire Horse Butte/Flats area. Indeed, the issuance
of the Statement was a direct response to the agencies' conclusion
that the cumulative effects of the non-helicopter hazing
and other human activities associated with the capture
facility had "the potential to adversely affect" the Horse Butte
nest site. The Forest Service also took pains to ensure that the
Permit included extant helicopter hazing restrictions that forbade
helicopter hazing of bison into the capture facility and
in Zones I and II around the three eagle nest sites.

[8] We are satisfied that the Forest Service took the hard
look required by NEPA before issuing the Permit and FONSI.

The Forest Service exhaustively evaluated the proposed
impact of the bison capture facility, soliciting public com-

7We note as well that the Forest Service was not presented with scientific
evidence specifically evaluating the environmental effects of the proposed
project or calling into question the adequacy of the Service's EA.
Cf. Blue Mountains, 161 F.3d at 1213; Sierra Club v. U.S. Forest Serv.,
843 F.2d 1190, 1192-93 (9th Cir. 1988)

10759 COLD MOUNTAIN v. GARBER

ments, making available all relevant documents, and formally
consulting with the USFWS. See Friends of Endangered Species,
Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) ("Our
task [in reviewing NEPA claims] is simply to ensure that the
procedure followed by the [agency] resulted in a reasoned
analysis of the evidence before it, and that the [agency] made
the evidence available to all concerned."). The Permit incorporated
the helicopter hazing restrictions of the bison and
eagle management plans - themselves products of a NEPA
process. See id. at 987 (noting that the "effect of mitigation
measures [is] to be considered in determining whether preparation
of an [EIS] is necessary"); see also Wetlands Action
Network, 222 F.3d at 1121. The Forest Service's FONSI
explicitly referred to the USFWS's BiOp and accompanying
take Statement, explaining that the documents provided "reasonable
and prudent measures and terms and conditions
designed to minimize the level of taking" and concluding that
the project was "not expected to significantly affect the continued
recovery of the [bald eagle] species regionally or
nationally." Any allegations of extensive helicopter hazing
were not brought to the attention of the Forest Service until
after the issuance of the FONSI and the Permit - exactly the
sort of post hoc evidence we frowned upon in Franklin. See
Franklin, 14 F.3d at 1334. We therefore conclude that the
Forest Service provided the "requisite convincing statement
of reasons" explaining why an EIS was unnecessary. See
Ocean Advocates, 361 F.3d at 1125; Blue Mountains, 161
F.3d at 1211.

3

[9] In support of its contention that other supplemental
NEPA analysis is now warranted by substantial changes or
significant new information, see 40 C.F.R. § 1502.9(c)(1)(i)
and (ii), Cold Mountain repeats its charges that the Permit's
helicopter hazing restrictions have been violated, thereby
causing a prohibited take in the form of the reproductive failure
of the Ridge nest. We conclude, however, that there is no

10760 COLD MOUNTAIN v. GARBER

ongoing "major Federal action" requiring supplementation.

See 42 U.S.C. § 4332(2)(C). Because the Permit has been
approved and issued, the Forest Service's obligation under
NEPA has been fulfilled. See Norton v. S. Utah Wilderness
Alliance, 542 U.S. ___, 2004 WL 1301302 (June 14, 2004);
Marsh, 490 U.S. at 374.