Judge rules against CSKT

WASHINGTON, D.C. - United States District Court Judge Colleen Kollar-Kotelly ordered an Annual Funding Agreement (AFA) between the federal government and the Confederated Salish and Kootenai Tribes be rescinded on Tuesday, a decision that will alter the way the National Bison Range in Moiese is overseen and managed.

Public Employees for Environmental Responsibility (PEER), a Washington, D.C.-based group that filed the lawsuit in Dec. 2008, applauded the decision of the court.

"We are most gratified that this agreement has been rescinded," senior counsel for PEER Paula Dinerstein said in a press release. "We expect the government to act quickly to put Fish & Wildlife Service staff back in place to repair the ongoing damage to the Bison Range."

A lawsuit filed by the Blue Goose Alliance in Dec. 2008 alleged that the federal Department of Interior, as well as intervenor-defendant CSKT, violated the National Environmental Policy Act (NEPA) by not filing a proper environmental assessment or other such document before continuing joint control of the Range in a 2008 AFA between the Tribes and the U.S. Fish & Wildlife Service, a chapter of the DOI. Four other claims were made in the lawsuit as well, Dinerstein said, but only the AFA agreement was ruled on it was enough to show a violation.

That violation, CSKT spokesman Robert McDonald said, had nothing to do with other claims PEER has made about CSKT management over the years.

"It merely found that with respect to this specific agreement, the federal agency did not explain its rational sufficiently for invoking a categorical exclusion under NEPA," he said. "Our political opponent has taken this opportunity to throw the kitchen sink at us. This judge's decision has nothing to do with Tribal performance. The environment [at the Range] for the past 18 months has been a wonderful example of how well these partnerships can work. It is a true success story of an on-the-ground partnership."

The two sides had previously qualified for a categorical exclusion of an environmental assessment on a 2005 AFA because they proved that "the proposed action will have no significant adverse effect on the quality of the human environment." But, when a new AFA was created to cover 2008, "the record shows that Defendants did not formally invoke the categorical exclusion for the 2008 AFA as they had previously done for the 2005 AFA," Judge Kollar-Kotelly's opinion says, resulting in her order to "set aside" the 2008 AFA.

"We are extremely disappointed with the decision and we will be exploring our options, along with the Service [FWS]," CSKT Tribal Chairman E.T. "Bud" Moran said in a statement on Tuesday. "Our initial effort will be on evaluating options to reconsider or stay the decision so as to avoid and minimize negative impacts on the Bison Range and its resources."

McDonald said it is too early to say what the Tribes will do next after receiving the decision.

"Basically, we're looking at the best options for post-judgment relief," he said. "I can't go into detail on what we may do. This is a decision that had no warning, it came via e-mail electronically, there was no heads up, no warning. Thus, there is no working partnership or agreement and a lot of unanswered questions."

When reached Tuesday afternoon, Pat Jamieson, an employee at the Bison Range, confirmed the refuge remains open, but it's anyone's guess for how long.

"What's going to happen in the next few days, that's what people are talking about," she said. "We haven't had any other details yet."

All calls to FWS were directed to U.S. Justice Department spokesman Wyn Hornbuckle, who would not speculate on the future of the range.

"We're still reviewing the court's decision and consulting internally within the Justice Department and with the U.S. Fish and Wildlife Service to determine the practical ramifications of this decision," he said.

McDonald said the Tribes hoped this would not prove detrimental for any future joint relationships.

"The court did not in any way prohibit or discourage these kinds of self-governance partnerships between federal and tribal governments," he said.