2—Cold Mountain Cold Rivers Complaint
capture facility located on the Peninsula. Such premonitoring is
required by the non-discretionary terms and conditions of the
Incidental Take Statement contained in the Biological Opinion
(BO) issued by the United States Fish and Wildlife Service. The
failure to pre-monitor bald eagle nests prior to constructing
the bison capture facility, therefore, constitutes a violation
of the Endangered Species Act. Plaintiffs sent Defendants a
sixty-day Notice of Intent to Sue (NOI) on January 5, 2001. See
Exhibit 1, Jan. 5, 2001 NOI. In that NOI, Plaintiffs also
reminded the Defendants of the helicopter hazing prohibition in
the “Horse Butte Area.” See Ex.1. The NOI additionally notified
the Defendants that the Annual Operation Plan for the 2000-2001
Montana Department of Livestock (MDOL) Bison Capture Facility
violates the Biological Evaluation (BE) and BO, and therefore
the ESA, by redefining the boundaries of the Horse Butte Area
where Helicopter use is strictly prohibited. Sixty days has now
lapsed since Plaintiffs sent the NOI. See Ex. 1.
Plaintiffs hereby also challenge the Annual Operation
Plan and Special Use Permit issued by the Gallatin National
Forest, and the use of helicopters in the Horse Butte Area to
haze bison. On April 27, 2000, Plaintiffs originally sent
Defendants a sixty-day NOI for various ESA violations, including
helicopter hazing in the Horse Butte Area. See Exhibit 2, April