RUDOLPH CONTRERAS, United States District Judge.
The American West is rich with wildlife of considerable ecological value. These related cases involve two iconic species — the elk and the grizzly bear — and their habitat in the Grand Teton National Park ("the Park") in northwestern Wyoming. When Congress created the Park in its present form, it provided that the conservation program for the elk "shall include the controlled reduction of elk in such park, ... when it is found necessary for the purpose of proper management and protection of the elk." 16 U.S.C. § 673c(a). In 2007, the National Park Service ("the NPS"), along with the Fish and Wildlife Service ("the FWS"), which manages the abutting National Elk Refuge ("the Refuge"), issued a joint plan for the management of the bison and elk herds that migrate across the Park, the Refuge, and nearby federal, state, and private lands. The plan called for the continuation of the elk reduction program, through an annual hunt, as necessary to reach particular sustainable elk herd population, sex, and age goals. Accordingly, the Governor of Wyoming and the NPS Regional Director have annually approved a harvest of 300 to 600 elk in the Park since 2007. The plan was also anticipated to have certain effects on the grizzly bear, a species listed as threatened under the Endangered Species Act ("ESA"). Therefore, the NPS consulted with the FWS in 2007 concerning those effects. The FWS issued a Biological Opinion concluding that the plan would not jeopardize the continued existence of the grizzly bear, and anticipating that one bear would be incidentally "taken" during the fifteen-year implementation of the plan. In 2013, after a grizzly bear was killed by hunters in the Park, the NPS reinitiated consultation with the FWS and issued an addendum to its Biological Opinion, increasing the total anticipated incidental take in the Park to five bears.
The Plaintiffs in these related cases challenge several aspects of the continued approvals of the elk hunt and the FWS's 2013 Addendum to its Biological Opinion
Now before the Court are Plaintiffs' respective motions for summary judgment
The Jackson elk herd is one of the largest concentrations of elk in North America. NPS-1947.
The Jackson elk herd's status was previously more precarious. By the turn of the twentieth century, the elk's native winter range had been significantly reduced. At that time, the herd "was largely confined to Jackson Hole and the immediately surrounding areas," which left the herd "at the mercy of the sometimes severe winter." NPS-1950. "Compounded by the loss of available winter range in Jackson Hole due to ranching operations and a growing town, significant numbers of elk died during several severe winters in the late 1800s and early 1900s." Id. These dramatic mortalities of a regionally important animal population prompted local citizens, organizations, and state and federal officials to begin a feeding program for the elk during the winter of 1910-1911. Id. From that concern was born what is now known as the National Elk Refuge. Id. Congress initially designated 2,000 acres in Jackson
While a sizable portion of the Jackson elk herd spends its winter on the Refuge, some of the herd also spends its summer in, or migrates through, the neighboring Grand Teton National Park. See NPS-2075 ("Approximately half of the elk wintering on the refuge summer in Grand Teton National Park."); NPS-2074-75 (describing studies estimating that 30% of the total elk herd summers in the Park); NPS-2076 (map depicting fall migration routes). In 1929, Congress initially set aside 150 square miles of the Teton Mountain Range in Wyoming to create the Park. See NPS-1959. The original park was combined in 1950 with the Jackson Hole National Monument, to create the Grand Teton National Park that we know today. See id.; see also 16 U.S.C. § 406d-1. The Park "is dedicated to the preservation and protection of the Teton Range and its surrounding landscapes, ecosystems, and cultural and historic resources." NPS-1959.
One of those resources is, of course, the elk. Indeed, the Grand Teton National Park Enabling Act specifically provided for the management of the Jackson elk herd. See 16 U.S.C. § 673c(a); see also Mayo Defs.' Mem. Supp. Cross-Mot. Summ. J. & Opp'n to Pls.' Mot. Ex. 1, ECF No. 39-1 (President Truman's signing statement, acknowledging that the legislation "contains a number of features which are designed to recognize the interests and wishes of the people living in the immediate vicinity" of the Park, including "detailed procedures for the management of the elk herd which migrates through the region"). Congress directed the "Wyoming Game and Fish Commission and the National Park Service" to "devise ... and recommend to the Secretary of the Interior and the Governor of Wyoming for their joint approval, a program to insure the permanent conservation of the elk within the Grand Teton National Park." 16 U.S.C. § 673c(a). As part of that conservation program, the Enabling Act also allows for the reduction of the elk herd, providing that the program "shall include the controlled reduction of elk in such park, by hunters licensed by the State of Wyoming and deputized as rangers by the Secretary of the Interior, when it is found necessary for the purpose of proper management and protection of the elk." Id. "At least once a year between February 1 and April 1," the Wyoming Game and Fish Commission ("WGFC") and the NPS must submit to the Secretary and Wyoming's Governor a joint recommendation "for the management, protection, and control of the elk for that year." Id. § 673c(b). That plan becomes effective when approved by the Secretary and the Governor, who are then directed to "separately, but simultaneously" issue orders and regulations necessary to implement the "portions of the approved plan that fall within their respective jurisdictions." Id. Those regulations "shall include provision for controlled and managed reduction by qualified and experienced hunters licensed by the State of Wyoming and deputized as rangers by the Secretary of the Interior, if and when a reduction in the number of elk by this method ... is required as a part of the approved plan for the year." Id.
The management of the elk herd in northwest Wyoming has long been contentious. After a court in this district enjoined the FWS's bison management plan because it had failed to consider the elk and bison feeding programs, see Fund for Animals v. Clark, 27 F.Supp.2d 8, 13-14
The agencies described the need for action as rooted in several consequences resulting from "wintering large numbers of elk and bison on the refuge." NPS-1914. While the agencies acknowledged that "there have been many benefits associated with" wintering the populations on the Refuge, "high animal concentrations have created an unnatural situation" that contributed to several problems. Id. Specifically, the concentration of animals led to: a high level of brucellosis
Among the six proposed alternatives analyzed in the 2007 Management Plan, the agencies ultimately settled on Alternative 4. That alternative called for adaptive management whereby the elk and bison herds and their habitat would be flexibly managed "on the refuge and in the park, with an emphasis on improving winter, summer, and transitional range in the park and on the refuge and on ensuring that the biotic integrity and environmental health of the resources would be sustained over the long term." NPS-1920. The approach would be "phased," with an initial period intended to "reduce the number of elk on feed on the refuge." NPS-1924. By the end of the initial phase, the agencies anticipated that there would be "an estimated 11,000 elk in the Jackson herd," with approximately 5,000 elk wintering on the Refuge. Id. The agencies noted that "[r]educing supplemental feeding would decrease refuge elk numbers and densities." Id. And, "[a]fter the initial phase, adaptive management would be emphasized to better reach desired conditions and goals concerning habitat, disease, and conflict prevention." Id. Throughout, elk hunting would be used — both "on the refuge, and when necessary in the park, to assist the state in managing herd sizes, sex and age ratios, and summer distributions." NPS-1994. As part of its adaptive management approach, Alternative 4 also called for establishing "criteria for progressively transitioning from intensive supplemental winter feeding to greater
The 2007 Management Plan was initially challenged in this district and appealed to the D.C. Circuit. See Defs. of Wildlife, 651 F.3d at 115-16. Several environmental organizations challenged the plan on the basis that its "failure to commit to a deadline for ending supplemental feeding was arbitrary and capricious." Id. at 115. The D.C. Circuit upheld the plan, but noted that "[t]here is no doubt that unmitigated continuation of supplemental feeding would undermine the conservation purpose of the National Wildlife Refuge System." Id. at 117. The court ultimately concluded, however, that the agencies had acted lawfully in "select[ing] an approach that is geared toward ending the practice over time while maintaining the flexibility needed to respond to facts on the ground." Id. The court did note that it was "highly significant and indeed dispositive to us, as it was to the district court, that the agencies are committed to ending supplemental feeding."
Since 2007, and as part of the Management Plan, the National Park Service Regional Director
At the time the 2007 Management Plan was adopted, approximately 6,800 elk had wintered on the Refuge in the most recent year (2005-2006). See NPS-2073. Since then, and despite the 5,000 elk target the plan established, the number of elk wintering on the Refuge has continued to exceed
Separate and apart from the direct management of the elk herd as part of the 2007 Management Plan, the plan also has the potential to affect the recovery of a threatened species: the grizzly bear. Although the grizzly bear population in the lower-48 states once numbered 50,000, between 1800 and 1975 the population was reduced to less than 1,000 bears. See FWS-211. In 1975, the Fish and Wildlife Service listed the species as threatened under the Endangered Species Act ("ESA"). See FWS-1-3. Once a species is listed, the ESA and its implementing regulations prohibit any person from committing a "take" of a member of that species, which includes, among other things, harassing, harming, hunting, shooting, wounding, or killing the animal, without authorization from the FWS. See 16 U.S.C. §§ 1538(a), 1532(19); 50 C.F.R. §§ 17.21(c), 17.31(a).
After a species is listed as endangered or threatened, Section 7 of the ESA requires every federal agency, in consultation with the Secretary of the Interior, to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). As part of its formal consultation, the FWS issues what is called a "biological opinion" (or "BiOp") which sets forth whether the service believes that the action will jeopardize the continued existence of the species. 50 C.F.R. § 402.14(g)(4). If the FWS concludes that the action is unlikely to jeopardize the continued existence of the species, but is nonetheless likely to result in some "`incidental take'" of the species, "the BiOp must set forth an Incidental Take Statement, which specifies the permissible `amount or extent' of this impact on the species." Oceana, Inc. v. Pritzker, 125 F.Supp.3d 232, 237 (D.D.C.2015) (quoting 16 U.S.C. § 1536(b)(4)(B)); see also 50 C.F.R. § 402.14(i)(1). The FWS's BiOp must also specify the "reasonable and prudent measures" that the Director "considers necessary or appropriate to minimize" the action's impact. 50 C.F.R. § 402.14(i)(1)(ii). Finally, regulations require
Consistent with the ESA, the NPS initiated consultation with the FWS concerning the 2007 Management Plan's impact on the grizzly bear population. After considering the status of the species and the various effects of the 2007 Management Plan, the FWS concluded that the plan, "as proposed, is not likely to jeopardize the continued existence of the grizzly bear." FWS-1689. Although the FWS noted that "some adverse effects may occur" as a result of the plan — including an "elevated risk of hunting-related conflicts occurring" in the Park — the agency determined that the increased risk "would be minimal in the long term," but "higher in the short-term." FWS-1690. Given the exacerbated short-term risk of a hunting-related grizzly bear mortality in the Park, the FWS anticipated that "1 grizzly bear (adult or juvenile) over the 15-year implementation period of the Plan could be incidentally taken as a result of the proposed action." FWS-1691. The FWS reiterated that "this level of anticipated take is not likely to result in jeopardy to the species." Id. The BiOp also established one reasonable and prudent measure it considered "necessary and appropriate to minimize impacts of incidental take of grizzly bears": it instructed the NPS to "[m]inimize the likelihood of hunting-related human/grizzly bear conflict ... through education of hunters." FWS-1692.
The incidental take authorized by the BiOp was reached in November 2012. In that month, a man and his two sons, who were taking part in the elk reduction program in the Park, had a surprise encounter with a grizzly bear. The bear charged at the men and was shot, resulting in the bear's death. See NPS-5863. Because the level of incidental take was reached, the NPS requested to reinitiate formal consultation with the FWS regarding the 2007 Management Plan's effects on the grizzly bear. See FWS-1564. The NPS asserted in a memorandum to the FWS that conditions associated with the elk reduction program "remain[ed] largely the same as they were in 2007 except that, as anticipated in the [2007 Management] plan, grizzly bear distribution and numbers in the south end of the park appear to have increased." FWS-1565. The NPS asserted that it "believe[d] continued implementation of the [2007 Management Plan] is likely to incur additional losses of grizzly bears from hunter-grizzly bear conflicts, which will adversely affect grizzly bears," but that it also believed "the number of bears affected will be small and will not jeopardize the continued existence of the Yellowstone ecosystem grizzly bear population." FWS-1567.
In response, the FWS issued an "addendum" to its 2007 BiOp that purported to "tier[] off of [the FWS's] original biological opinion" and provide a new incidental take statement for grizzly bears "which reflects current conditions within the Park and Refuge." FWS-1662. The new incidental take statement was intended to "supersede" the previous 2007 statement and would be "valid for the remaining 9 years under the 2007 biological opinion, through the year 2022." Id. After briefly discussing the contemporary status of the grizzly bear, the addendum concluded that, "given the current estimated population of grizzly
Plaintiffs in these related cases challenge various aspects of the NPS's and the FWS's actions in managing the annual elk reduction program and in consulting regarding the 2007 Management Plan's impact on the grizzly bear. Although some of the claims overlap — and the plaintiffs' briefing incorporates certain arguments by reference — the parties' raise different claims in each case.
In the first case, Mayo v. Jarvis, Plaintiffs Timothy Mayo and Kent Nelson bring claims against the NPS and the FWS related to the elk reduction program and the FWS's 2013 Addendum to its BiOp regarding the grizzly bear. Mr. Mayo and Mr. Nelson are both avid wildlife photographers who live near the Park and visit regularly. See Mayo Compl. ¶¶ 5, 12, ECF No. 1-1. Mayo
In the second case, Sierra Club v. Jewell, Plaintiffs Sierra Club, the Western Watersheds Project, and the Center for Biological Diversity
The Court granted the motions of the State of Wyoming and Safari Club, International, to intervene as defendants. See Mayo ECF Nos. 6, 20; Sierra Club ECF Nos. 13; 22. Mayo and Sierra Club have each moved for summary judgment in their respective cases, see Mayo ECF No. 35; Sierra Club ECF No. 26, and Defendants, Wyoming, and Safari Club have cross-moved for summary judgment, see Mayo ECF Nos. 39, 40, 43; Sierra Club ECF Nos. 28, 30, 33.
A court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When assessing a motion for summary judgment in an APA case, however, "the district judge sits as an appellate tribunal." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001). In such cases the complaint "actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action." Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993). Therefore, "[t]he entire case on review is a question of law, and only a question of law." Id. The Court's review "is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously," Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C.Cir.2009), or in violation of another standard set out in section 10(e) of the APA, see 5 U.S.C. § 706. Because the ESA does not contain its own standard of review provision, judicial review is likewise governed by the APA's arbitrary and capricious standard. Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685-86 (D.C.Cir. 1982).
The scope of a court's "arbitrary and capricious" review "is narrow" and "a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). To satisfy the standard, an agency "must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). An agency's action is arbitrary and capricious if it "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. And when undertaking that review, a court is to "give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise." Cmtys. for a Better Env't v. EPA, 748 F.3d 333, 336 (D.C.Cir.2014) (quoting City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C.Cir.2003)); see also Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, 815 F.3d 1, 14, 2016 WL 790900, at *11 (D.C.Cir. Mar. 1, 2016) ("Because predicting the future status of wildlife is a difficult task, the court has
Plaintiffs collectively bring challenges under four statutes: NEPA, the ESA, the Organic Act, and the Grand Teton National Park Enabling Act. The Court will discuss each in turn.
NEPA was enacted in 1970 "to promote efforts which will prevent or eliminate damage to the environment and biosphere." 42 U.S.C. § 4321. The Act "declares a broad national commitment to protecting and promoting environmental quality," Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), and requires agencies to "consider fully the environmental effects of their proposed actions," Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C.Cir.2010) [hereinafter TRCP].
To accomplish that goal, NEPA instructs all federal agencies to prepare and solicit public comment on an Environmental Impact Statement ("EIS") for every "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). By statute, an EIS must address: (1) "the environmental impact of the proposed action," (2) "any adverse environmental effects which cannot be avoided should the proposal be implemented," (3) "alternatives to the proposed action," (4) "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and (5) "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." Id. § 4332(C)(i)-(v). In requiring agencies to consider and prepare an EIS discussing these factors, the Act has "twin aims": it "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," and it also "ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).
The Council on Environmental Quality ("CEQ") has promulgated regulations interpreting NEPA and clarifying which agency actions require the preparation of an EIS. See generally 40 C.F.R. § 1500 et seq. Those regulations allow an agency to prepare a more limited Environmental Assessment ("EA") if it is not clear that the agency's action will require the production of a full EIS. See 40 C.F.R. § 1501.4(b). An EA is "a concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement." Id. § 1508.9(a)(1). If, after producing an EA, an agency determines that an EIS is not required, it may issue a "finding of no signification impact" ("FONSI"), setting forth the reasons why the proposed action will not have a significant effect on the human environment. Id. §§ 1501.4(d), 1508.13.
NEPA imposes only "procedural requirements" on federal agencies. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). The Act is merely "meant to ensure" that an agency makes "a fully informed and well-considered decision"; NEPA, of its own accord, does not require an agency to arrive at the "best decision" from an environmental standpoint. TRCP, 616 F.3d at 503 (internal quotation marks
Thus, NEPA only requires that all federal agencies take a "`hard look' at the environmental consequences before taking a major action." Balt. Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246 (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). "The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Id. at 97-98, 103 S.Ct. 2246; see also Pub. Citizen, 541 U.S. at 763, 124 S.Ct. 2204 ("An agency's decision not to prepare an EIS can be set aside only upon a showing that it was `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'") (quoting 5 U.S.C. § 706(2)(A)). Courts must therefore "review an agency's compliance with NEPA's requirements deferentially." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). An agency "need only follow a `rule of reason' in preparing an EIS" and when determining "which alternatives the agency must discuss, and the extent to which it must discuss them." Id. at 195 (internal quotation mark omitted) (emphasis in original) (quoting Alaska v. Andrus, 580 F.2d 465, 475 (D.C.Cir.1978)). The agency "bears the responsibility for defining at the outset the objectives of an action" and a court will "uphold an agency's definition of objectives so long as the objectives that the agency chooses are reasonable, and [will] uphold its discussion of alternatives so long as the alternatives are reasonable and the agency discusses them in reasonable detail." Id. at 195-96.
Mayo claims that the NPS has failed to comply with NEPA because the agency prepares neither an EA nor an EIS before authorizing the elk reduction program in the Park each year.
Defendants do not dispute that the NPS does not prepare an EA or EIS each year when authorizing the annual elk reduction program, and they do not appear to contest that the annual elk hunts generally fall within NEPA's definition of a major federal action.
On the facts of this case, the Court agrees with the NPS's understanding of the agency's NEPA obligation. To understand why requires some background about the 2007 Management Plan and the alternative it adopted. NPS's preferred alternative, Alternative 4 (and the one eventually adopted), called for adaptive management of both the bison and elk herd populations and their habitat, through which "a dynamic framework for decreasing the need for supplemental feeding on the refuge" would be developed "based on existing conditions, trends, new research findings, and other changing circumstances." NPS-1920. Under that approach, "the elk herd reduction program in the park" would "be used to assist the state in managing herd sizes, sex and age ratios, and summer distributions." Id. More specifically, Alternative 4 proposed to reduce the number of elk wintering on the Refuge to approximately 5,000 elk, reduce the number of elk summering in the Park to 1,600 elk, and to manage the overall Jackson elk herd at the WGFD's 11,000 population objective. See NPS-1924; NPS-2011; NPS-2210. The NPS also proposed to establish an elk bull-to-cow ratio that is "more reflective of non-hunted populations," and initially recommended a 35-to-100 ratio based on the summer elk herd. NPS-2012. To reach these goals, the 2007 Management Plan proposed using hunting on both the Refuge and in the Park, in addition to reestablishing the elk's natural winter habitat. NPS-2003 (describing objectives and strategies for improving elk grazing habitat); NPS-2240 (explaining that "a decrease to the 5,000 Refuge population target would be "gradual" and "accomplished through a short-term increase
The EIS canvassed the environmental consequences that would result both from achieving the selected goals and implementing the management actions the agencies anticipated using to meet them. For example, the EIS anticipated that the elk herd's distribution would increase as the elk came to rely more heavily on standing forage and native winter range, NPS-2241, and that the elk's competitiveness and aggressiveness would be reduced as supplemental feeding and elk numbers on the range decreased, NPS-2243. In addition, the EIS predicted that "[c]hanges in hunting practices" would cause "short-duration adverse effects," particularly on the southern portion of the Refuge, where harvesting elk "in these traditionally safe areas" would "increase agitation and nervousness, energetic expenditures, and possibly decreasing nutrition because of reductions in foraging." NPS-2243. Overall, the EIS noted that Alternative 4 would "continue to enhance health and sustainability of the Jackson elk herd in the long term," although to a lesser extent than some of the alternatives. NPS-2249.
More to the point, it is clear that the EIS took the requisite "hard look" at the potential environmental effects that might result from continuing the elk reduction program in the Park as a method of managing the herd. To begin with, the 2007 Management Plan itself explained that it intended the EIS's "level of analysis" to be "sufficient to allow several management actions to be carried out without having to complete additional analyses (e.g., environmental assessments) prior to implementation." Id. Those additional management actions were forecasted to include changes to "the number of elk and bison inhabiting the National Elk Refuge, Grand Teton National Park, and John D. Rockefeller, Jr. Memorial Park," changes to the "elk herd reduction program in the park, including changes to hunt areas," and changes to "elk hunting on the refuge, including changes to hunt areas." NPS-1974-76.
Beyond this assertion of the EIS's scope, a thorough review of the EIS reveals that throughout its discussion of Alternative 4, and where relevant, the NPS specifically considered the environmental effects of utilizing elk hunting in the Park as a management strategy. For example, the NPS discussed whether elk hunting would have an adverse impact on the natural scenery and other wildlife enjoyment in the park. As the EIS noted, "[c]ontinued elk herd reduction in parts of Grand Teton National Park would detract from the naturalness of the scenery for some visitors during the fall and early winter." NPS-2160; see also NPS-2415 (explaining that "[h]unting in the park would continue to adversely affect the experiences of some visitors during the fall and early winter" and that "[i]nitially the number of elk harvested in the park would be higher than now, but in the long term fewer elk would be taken"). But the EIS nevertheless concluded that "[m]oderate to large numbers of elk and bison on the refuge and in the park would continue to be important elements of the scenery of Jackson Hole." NPS-2160. Overall, the agency believed that Alternative 4 "would not result in the impairment of visual resources in the park." Id.
The NPS also explained how the elk reduction program might affect visitors' opportunities to observe elk in the Park. The EIS anticipated that a reduction of the Park segment of the elk herd from approximately 2,676 elk to 1,600 elk, as Alternative 4 called for, "could result in fewer viewing opportunities for a minority
The effects of hunting on the size, sustainability, and health of the elk herd was also considered. Hunting would lead to "[m]oderate to major reductions in the number of elk," decreasing herd densities, with an objective to lower the number of the Park herd segment that winters in the Refuge to approximately 1,600 elk. NPS-2242. This decrease, in turn, would reduce the aggregate number of elk wintering there and "produce a more sustainable situation, with fewer elk being more able to survive on standing forage without supplemental feed." NPS-2248. This would also keep the elk mortality level from rising more than a negligible amount. Id. In addition, elk hunting targeting female cows (rather than bulls) would help to "readjust" the bull to cow ratio, which the NPS described as lower than in a more natural elk population that was neither fed nor hunted. NPS-2247.
The EIS also discussed the possibility of hunting accidents. The NPS noted that "[h]unting accidents in both the park and the refuge have been relatively low over the last two decades," and that only four, non-fatal hunting accidents involving firearms had been reported in Wyoming in 2003. NPS-2401. Thus, the EIS concluded that the eventual reduction in the number of elk harvested under Alternative 4 would "lower the potential for hunting accidents." NPS-2401.
Finally, the EIS considered the adverse effects the 2007 Management Plan, generally, and the elk reduction program, specifically, would have on endangered and threatened species, including the grizzly bear. The EIS explained that, as winter feeding abated, up to 2,000 more elk could end up feeding off of "native winter range," leading to a higher rate of elk mortality from which grizzly bears "could benefit if more winter-killed elk and bison died in areas accessible to bears after they emerged from hibernation in the spring." NPS-2309. In a similar manner, the EIS explained that "[i]f, or when, no supplemental feeding was provided, the vulnerability and mortality of elk and bison on the refuge could be higher, and wolves, grizzly bears, and bald eagles could benefit compared to baseline conditions and Alternative 1." Id. The EIS did acknowledge the potential negative effects on grizzly bears, but ultimately considered those effects to
These provide only some examples of the specific considerations the EIS gave to the continued use of the elk reduction program in the Park. And, to be sure, each of these particular discussions was relatively modest in relation to the overall plan — which spanned more than 600 pages and considered all aspects of the Elk and Bison Management program across several federal lands. But they demonstrate that the agency sufficiently considered and took a "hard look" at the possible environmental impact of continuing to allow elk hunting in the Park. See Balt. Gas & Elec., 462 U.S. at 97-98, 103 S.Ct. 2246 (explaining that a court's role "is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious").
Mayo contends, however, that the 2007 Management Plan constitutes a broad, programmatic EIS which cannot "obviate the need for NEPA compliance on the annual site-specific decisions." Mayo Pls.' Mem. Opp'n to Defs.' & Intervenors' Mots. Summ. J. & Reply at 10 ("Mayo Pls.' Opp'n & Reply"), ECF No. 45. Courts have "long recognized" a distinction between what are called "programmatic and site-specific environmental analyses." Ctr. for Food Safety v. Salazar, 898 F.Supp.2d 130, 149 (D.D.C.2012). On the theory that "a systematic program is likely to generate disparate yet related impacts," a programmatic EIS "reflects the broad environmental consequences attendant upon a wide-ranging federal program" and "looks ahead and assimilates `broad issues' relevant to one program design." Nat'l Wildlife Fed'n v. Appalachian Reg'l Comm'n, 677 F.2d 883, 888 (D.C.Cir.1981). A site-specific EIS, by contrast, "addresses more particularized considerations arising once the overall program reaches the `second tier,' or implementation stage of its development." Id. Typically, a "site-specific" EIS will "be necessary to supplement the environmental analysis of a programmatic impact statement." Nat. Res. Def. Council, Inc. v. Adm'r, Energy Research & Dev. Admin., 451 F.Supp. 1245, 1258 (D.D.C. 1978), aff'd in relevant part 606 F.2d 1261 (D.C.Cir.1979) (footnote omitted). CEQ's regulations accommodate the relationship between programmatic and regional, or site-specific, analyses through a process called "tiering." See 40 C.F.R. § 1508.28. Tiering refers to the consideration of "general matters in broader environmental impact statements (such as national program or policy statements)," which are then "incorporat[ed] by reference" in "subsequent narrower statements or environmental
There is no doubt that the 2007 Management Plan's EIS is, in part, a programmatic document. It analyzes a range of management activities affecting both the bison and elk herds in multiple federal management areas. And the plan labels itself as such. See NPS-1974 ("The bison and elk management planning document, when finalized, will provide programmatic coverage in accordance with [NEPA]."). At the same time, however, not every programmatic NEPA analysis will require a subsequent, site-specific analysis for all actions covered in the programmatic analysis. This district court has indicated as much, explaining that a subsequent, site-specific EIS "is not necessary if all the environmental analysis required by section 102(2)(C) of NEPA is contained in the programmatic statement." Adm'r, Energy Research & Dev. Admin., 451 F.Supp. at 1259. Several other courts have held the same. See, e.g., Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994) ("A comprehensive programmatic impact statement generally obviates the need for a subsequent site-specific or project-specific impact statement, unless new and significant environmental impacts arise that were not previously considered." (emphasis added)); United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cnty., State of Miss., 733 F.2d 377, 381 (5th Cir.1984) ("A site-specific impact statement is not necessary, however, if the programmatic impact statement contains all the analysis required by section 102(2)(C) of NEPA."); Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1377 (10th Cir.1980) (explaining that "if an EIS prepared for a whole program contains a reasonable, good faith discussion of each of the five NEPA requirements applicable to future actions contemplated in order to implement the program, [then] no separate or supplemental EIS will be required for each future component action, unless a significant change occurs in the interval"); Ventling v. Bergland, 479 F.Supp. 174, 180 (D.S.D.1979) ("[W]here the programmatic EIS is sufficiently detailed, and there is no change in circumstances or departure from the policy in the programmatic EIS, no useful purpose would be served by requiring a site-specific EIS.").
The D.C. Circuit has similarly suggested that an agency may choose to couple a programmatic analysis with a site-specific analysis. See Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C.Cir.1973) (holding that the agency must prepare a NEPA analysis for a comprehensive federal research program for the Liquid Metal Fast Breeder Reactor — separate and apart from the analysis prepared for major test facilities — but explaining that it was "of little moment whether that analysis is issued as a separate NEPA statement or... included with a NEPA statement on a particular facility"); see also Nat. Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm'n, 606 F.2d 1261, 1271 (D.C.Cir. 1979) (citing Scientists' Institute and explaining that the agency "in its discretion, could have chosen to explore alternatives to the particular [waste] tanks" at issue in that case "in either a `programmatic' or `site-specific' format"). Such "[q]uestions of format ... properly reside within the discretion of the issuing agency." Scientists' Inst., 481 F.2d at 1092; cf. Grunewald, 776 F.3d at 904-05 (emphasizing an agency's discretion and concluding that the NPS did not act arbitrarily and capriciously when it declined to consider the Exotic Plant Management Plan and the Deer Management Plan for Rock Creek Park in the District
Thus, the Court does not read NEPA to foreclose an agency, in its discretion, from simultaneously analyzing both the broad environmental consequences of a federal program and certain narrower features of the program. If an agency does so, "[a] single EIS may cover both programmatic impacts and impacts of particular projects contained within the broader program." Vt. Pub. Interest Research Grp. v. U.S. Fish & Wildlife Serv., 247 F.Supp.2d 495, 528 (D.Vt.2002) (emphasis added) (citing Scientists' Inst., 481 F.2d at 1092); accord Salmon River Concerned Citizens, 32 F.3d at 1356; Ventling, 479 F.Supp. at 180. Accordingly, the Court is similarly not persuaded that every EIS will necessarily fall squarely into the "programmatic" or "site-specific" category, or that an EIS may only serve a single purpose, rendering the categories mutually exclusive.
Here, as already explained above, the 2007 Management Plan's EIS considered a multitude of environmental effects that would flow from the continued use of hunting in the Park. Indeed, despite embracing the overall description of a programmatic document, the EIS, itself, states that: "this planning document/environmental impact statement provides more than programmatic coverage for elk and bison management." NPS-2143 (emphasis added). It envisioned providing sufficient analysis to permit changes to the "elk herd reduction program in the park, including changes to hunt areas," and to "elk hunting on the refuge, including changes to hunt areas." NPS-1974-76. On this basis, the out-of-circuit case on which Mayo most heavily relies, Fund for Animals v. Mainella, 283 F.Supp.2d 418 (D.Mass.2003) is easily distinguishable. There, a federal district court in Massachusetts considered the NPS's approval of waterfowl, upland game, and pheasant hunting in the Cape Cod National Seashore, a component of the National Park System. See Mainella, 283 F.Supp.2d at 423, 425-26. The NPS had produced a General Management Plan for the National Seashore in 1998, which discussed the hunting and pheasant stocking programs. See id. at 425-26. But the EIS prepared as part of that management plan had "specifically adumbrated the limitations of its intended scope," and expressly provided that "[i]n the future, implementation of specific actions included in the approved final general management plan would require
Moreover, the court in Mainella also noted that the 1998 EIS "did not examine the direct and indirect effects of hunting, for example, by examining the effect of hunting on the population of the various different species hunted in the Seashore, the impact of the presence of hunters in different areas within the Seashore, or public safety concerns associated with hunting weapons being used in the Seashore." 283 F.Supp.2d at 432-33. But here, as explained above, the 2007 Management Plan's EIS specifically discussed these types of concerns when it analyzed, among other things, the elk reduction program's impact on elk populations and distribution, the potential for public safety hazards, and the effects on threatened species. See, e.g., NPS-2241-43; NPS-2401; NPS-2304-09.
Instead, the closest analogue to the EIS issued in this case is an out-of-circuit district court case which Defendants point to but Mayo fails to distinguish (or even discuss) altogether. See Mayo Defs.' Mem. Supp. at 18, 27. In Vermont Public Interest Research Group v. U.S. Fish & Wildlife Service, a federal district court in Vermont considered an EIS developed to analyze a program to control the sea lamprey, a parasitic eel-like fish, in Lake Champlain and twenty-seven of its streams or tributaries. 247 F.Supp.2d 495, 502-04 (D.Vt.2002). The plan called for a "tributary-specific approach" that would employ two different methods to control the lamprey: lampricides (a type of pesticide) and physical barriers and traps that would inhibit adult lamprey migration from tributaries to Lake Champlain. Id. at 503-04. The EIS screened each stream for "site-specific information" in order to determine which methods of control would be most suitable. Id. at 504. In response to a NEPA challenge claiming that site-specific analyses were necessary because the EIS failed to sufficiently evaluate the environmental impacts upon each particular stream, the court acknowledged that the EIS provided a "comprehensive analysis of the environmental effects of controlling sea lamprey in Lake Champlain's tributaries" and was therefore "programmatic." Id. at 528. But the court went on to note that the EIS "also provides individual analysis for each tributary" that adequately examined the potential environmental impacts for each. Id. (emphasis added). Noting that "[s]ubsequent individual actions falling under the auspices of the program require additional assessment only where localized environmental effects have not been fully evaluated in the programmatic statement," the court rejected the NEPA challenge. Id. (emphasis added).
While Mayo casts each annual decision whether to hold an Elk hunt, and the concomitant determinations regarding the number of hunting licenses to issue or the
Mayo also points to several gaps in "whether, where, and how to conduct a hunt in any particular year" in an effort to show that the NPS must conduct a site-specific analysis each year before it approves the Park elk hunt. Mayo Pls.' Opp'n & Reply at 12 (emphases omitted). Yet, these gaps are byproducts of the adaptive management process that NPS selected — a type of management that this Circuit has blessed as generally compatible with an agency's NEPA obligations. The D.C. Circuit has held that selecting an "adaptive management plan" does not violate NEPA's charge "to take a hard look at environmental impacts before actions are taken." TRCP, 616 F.3d at 517. The Circuit has explained that "[t]he procedural requirements of NEPA do not force agencies to make detailed, unchangeable mitigation plans for long-term development projects"; instead, permitting "adaptable mitigation measures is a responsible decision in light of the inherent uncertainty of environmental impacts."
Here, the NPS makes a limited number of decisions each year about which areas of the Park to keep open to the hunt and how many elk or what sex to harvest. These decisions are made in order to target certain elk herd segments or in an attempt to affect reproduction rates. See, e.g., NPS-6851. But having intensively detailed the anticipated environmental consequences of hunting in the Park, the Court fails to see how these minor alterations undermine the NPS's NEPA analysis. An EIS need only be "reasonably complete," and it need only include "sufficient detail to ensure that environmental consequences have been fairly evaluated." Nat. Parks Conserv. Ass'n v. Jewell, 965 F.Supp.2d 67, 75 (D.D.C.2013). Moreover, the gaps here are quite modest, and the elk reduction program in the Park has been confined to particular areas. See NPS-2091 (map of existing elk hunting areas in the Park, the Refuge, and surrounding areas). If "an EIS prepared for a whole program contains a reasonable, good faith discussion of each of the five NEPA requirements applicable to future actions contemplated in order to implement the program, [then] no separate or supplemental EIS will be required for each future component action, unless a significant change occurs in the interval." Envtl. Def. Fund, Inc., 619 F.2d at 1377. Mayo does not identify anything in these annual alterations that would meaningfully change the environmental consequences expected to flow from them.
Finally, Mayo contends that the 2007 Management Plan cannot satisfy the agency's NEPA obligations because the increase in elk being fed on the Refuge demonstrates that the Plan is not being implemented according to its plain terms. See Mayo Pls.' Mem. Supp. at 34. As even Mayo's reply indicates, however, this argument is duplicative of his supplemental NEPA claim, Mayo Pls.' Opp'n & Reply at 17-19, and the Court will address it as such.
In sum, the Court finds that the EIS prepared as part of the 2007 Management Plan sufficiently considered the environmental impacts of continuing the elk reduction program in the Park without necessitating the preparation of a new EA or EIS each year when a particular hunt is approved. Thus, Mayo's broad NEPA argument fails.
In the alternative, Mayo argues that even if the 2007 Management Plan sufficed for NEPA purposes, the NPS is now precluded from relying on that plan because it is not being implemented as envisioned or because significant new information exists which requires the NPS to prepare a supplemental EIS.
As the Supreme Court has recognized, the preparation of a supplemental EIS, "although not expressly addressed in NEPA" is "at times necessary to satisfy the Act's `action forcing' purpose." Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 370-71, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The CEQ regulations have codified this requirement, and impose a duty on agencies to prepare a supplemental EIS if "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns" or if there "are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c). An agency "need not supplement an EIS every time new information comes to light after the EIS is finalized," however. Marsh, 490 U.S. at 373, 109 S.Ct. 1851. Only changes "that cause effects which are significantly different from those already studied require supplementary consideration."
As an initial stumbling block, Defendants argue that Mayo has forfeited any supplemental NEPA challenge, focusing on Mayo's single citation to 40 C.F.R. § 1502.9(c), which was accompanied by a parenthetical describing an agency's duty to supplement its NEPA analysis. Defendants accurately point out that "[a] fleeting statement in the parenthetical of a citation is no more sufficient to raise a claim than a cursory remark in a footnote, which [the
Proceeding to the merits, the Court finds the putative new circumstances or information Mayo proffers unavailing. Where possible,
First, Mayo contends that the elk reduction program is producing new and unprecedented effects on the grizzly bear. Mayo highlights what he sees as "increasing" conflicts between humans (specifically hunters) and instances in which grizzly bears have been attracted to elk gut piles left by hunters. See Mayo Pls.' Mem. Supp. at 25-26; Mayo Pls.' Opp'n & Reply at 24-27. But — as explained in more detail below in reference to Plaintiffs' Endangered Species Act claims — these circumstances are not new. The 2007 Management Plan specifically noted that the grizzly bear's "distribution has been increasing over the past two decades." NPS-2107. The EIS explained that, under each of the six alternatives NPS considered, "[a]s the grizzly bear population continues to expand southward, the risk of conflicts between hunters and grizzlies could increase." NPS-2305 (emphases added). And the 2007 BiOp both concluded
Of course, the 2007 Management Plan did predict that an increased risk for conflicts or mortality would be minimized, relying on the fact that no grizzly bears had been killed during the elk hunt. NPS-2305. But those risks also appear to be what led the FWS to conclude that the 2007 Management Plan would "exacerbate the short-term risk for hunting-related grizzly bear mortality within the park," and to anticipate that one bear could be incidentally taken in the Park as a result of the proposed action. FWS-1691. Indeed, the FWS's BiOp specifically concluded that hunters might face "a higher risk of grizzly conflict" in the "Snake River bottom" area — where the one take took place — and where "thicker cover exists and grizzly bears are known to frequent." FWS-1686; see also FWS-1683 (explaining that "[t]he relative lack of tree cover across most of the [Park] hunt area makes it less suitable for grizzly bears, with the exception of areas within the Snake River Bottom, Blacktail Butte, and other small forested patches"). But, despite the fact that the incidental take was reached, the NPS and FWS do not view the general circumstances surrounding the impact of the elk management plan on the grizzly bear as all that different. See FWS-1565 (memorandum from the NPS to the FWS contending that "[c]onditions associated with the ERP remain largely the same as they were in 2007 except that, as anticipated in the plan, grizzly bear distribution and numbers in the south end of the park appear to have increased"). The Court perceives little in the record that lends support to Mayo's alternative view.
As for the gut pile contention, the agency did not act arbitrarily or capriciously in concluding that grizzly bears' reliance on gut piles left behind by hunters was not a new phenomenon. As the agency stated in its June 2012 letter, "[g]rizzly bears throughout the ecosystem seek out gut piles during hunting season." NPS-5590. In fact, that letter cited an academic article, also contained in the administrative record, which explains that as far back as 1986, "researchers estimated that 370 tons of biomass from `gut piles' and other discarded parts was left by elk hunters annually in the GYE." NPS-7462; see also NPS-5590 (citing this article in footnote 3). The 2007 Management Plan discussed the potential for additional food sources from the gut piles, see, e.g., NPS-2307-08, and NPS briefing statements continue to reiterate the same, see NPS-6766 ("Gut piles left behind by hunters are also a readily available source of nutrition for bears in the
Second, Mayo claims that the fact that predators, like grizzly bears and wolves, have returned to the Park "calls into serious question the extent to which hunting is necessary to keep elk populations in check at all." Mayo Pls.' Mem. Supp. at 27; see also Mayo Pls.' Opp'n & Reply at 27-28. Yet again, this information is not new. Indeed, the 2007 Management Plan had discussed the impact of wolf predation "in some detail because of public concern about the recent decline of calf-to-cow ratios." NPS-2092. At that time, the NPS noted that it was difficult to pinpoint "the relative degree to which wolves, the drought, high elk densities, habitat decline, hunter harvest, or other factors" were causing a decline in calf ratios. NPS-2093. Moreover, the NPS explained that four elk herds that were "not subject to wolf predation are also experiencing declining calf-to-cow ratios," although the agency conceded that those herds' calf-to-cow ratios remained higher than the Jackson elk herd. Id. Overall, the agency concluded that the "decline in calf-to-cow ratios on the refuge and in the Jackson herd" was "apparently linked to a combination of factors," and that "more research must be done" before any "definitive conclusions can be drawn about the effects of wolves on their prey." NPS-2094.
The agency's June 2012 letter indicates that the agency perceives no meaningful change in its assessment. The NPS again conceded that wolves contribute to the decline in calf ratios in certain areas of the park, but noted that those ratios "vary widely geographically ... with generally higher ratios in southern reaches of the park," and that the overall elk population had not meaningfully increased or decreased since 2001. NPS-5591-92. Thus, the agency concluded that "all available data support that the elk reduction program... continues to be necessary for regulating the Jackson herd." NPS-5592. Mayo relies on a letter sent by Dr. Franz Camenzind to the park Superintendent Mary Gibson Scott, in which Dr. Camenzind opined that certain carnivores, like wolves, "are having an impact on the park's elk population," which may have brought "elk numbers to levels reflecting natural conditions." NPS-5190. But Mayo only selectively quotes from Dr. Camenzind's letter; Dr. Camenzind begins his discussion by conceding that he is not "privy to current data." Id. Moreover, he readily concedes that, although he believes wolves "are having an impact on the park's elk population ... [t]o what degree I don't know." Id. Thus, Dr. Camenzind provides nothing more than speculation. His contentions in fact align with the NPS's concession that wolves have had some impact on the elk's population. The Court must defer to the agency's technical expertise, and Mayo has provided nothing to indicate that the effect of predators on elk meaningfully differs from the situation the agency considered when it developed the 2007 Management Plan's EIS. See Marsh, 490 U.S. at 377, 109 S.Ct. 1851; Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, 815 F.3d 1, 14, 2016 WL 790900, at *11 (D.C.Cir. Mar. 1, 2016) ("Because predicting the future status of wildlife is a difficult task, the court has acknowledged deference is appropriate to the agency's evaluation of scientific data within its technical expertise.").
Mayo's third claim — that there have been significant changes to the hunt — merits only brief discussion. Mayo relies largely on a NPS Wildlife Biologist's passing statement in an e-mail, attaching a "summary of the major changes to the ERP [Elk Reduction Program] in the last 2
In contrast to these three issues, the final circumstance which Mayo describes as a "substantial change" may have some traction in the abstract. But the Court concludes that it is outside the scope of this action and does not indicate that circumstances have changed specific to the environmental effects of the elk reduction program, which is the only aspect of the NEPA analysis that Mayo has challenged in this case. See Mayo Compl. ¶ 73 (alleging that NPS has failed to comply with NEPA's requirements "for the consideration of environmental impacts associated with the annual hunts" (emphasis added)).
While these circumstances could possibly supply fodder for a supplemental NEPA claim for other parts of the 2007 Management Plan,
Mayo challenges Defendants' response as a post hoc rationalization. Yet, the record indicates that the NPS had no opportunity to address this supplemental NEPA claim because Mayo never presented the argument to the NPS. Mayo's attorney, on his behalf, did submit a letter to the NPS arguing that a supplemental analysis was necessary for various reasons. But in that letter, Mayo's counsel never raised the increase in elk on supplemental feed in the Refuge as one such reason.
While the growing number of elk wintering in the Refuge may serve as one justification for continuing the elk reduction program in the Park, for purposes of NEPA, that factual reality does not show that the anticipated environmental effects of continued elk hunting in the Park — which the 2007 Management Plan already envisioned and analyzed — has significantly changed to warrant a supplemental analysis. Mayo fails to explain how an increase in elk wintering on the Refuge may have meaningfully changed the anticipated environmental impacts of the fall elk hunt in the Park. Cf. Pub. Emps. for Envtl. Responsibility, 832 F.Supp.2d at 29-30 ("[W]hether a change is `substantial' so as to warrant an SEIS is determined not by the modification in the abstract, but rather by the significance of the environmental effects of the changes."). Therefore, the Court does not believe the NPS acted arbitrarily and capriciously in failing to
To summarize, the Court concludes that in the EIS created for the 2007 Management Plan the NPS took the requisite "hard look" at the environmental consequences of continuing the elk reduction program in the Park. While that document was a programmatic analysis in the sense that it considered a multitude of agency actions across several federal management areas, the EIS also contained a detailed analysis of the environmental impacts of elk hunting at a particular site: the Park. And none of the circumstances Mayo raises indicate that the agency has acted arbitrarily and capriciously in declining to conduct a supplemental NEPA review. Accordingly, the Court will grant summary judgment to Defendants on Mayo's NEPA claim.
The Grand Teton National Park Enabling Act provides that the Park's conservation program for the elk "shall include the controlled reduction of elk in such park ... when it is found necessary for the purpose of proper management and protection of the elk." 16 U.S.C. § 673c(a). Mayo contends that the NPS's 2015 decision authorizing elk hunting in the park is arbitrary and capricious because the NPS has not explained the basis for its finding.
The record plainly contradicts Mayo's claim. The 2015 hunt decision states that "a controlled reduction of elk in Grand Teton National Park (GTNP) in 2015 is necessary for the proper management and protection of the elk," based on the Governor and the NPS Regional Director's Superintendent's "joint review of the Jackson elk herd," including the herd's "size, composition, and ratios," migration patterns, the number of elk on supplemental feed in the Refuge, and "other technical information." NPS-7543. The decisional document also attached the joint recommendation of WGFD's Director and the Park's Superintendent "for the purpose of providing a more complete understanding of the need
Accordingly, the recommendation stated that "a harvest of elk that summer in GTNP and hunt areas 78, and winter on the NER [the Refuge] is desired," and concluded that "[t]he proposed season structure should lead to restoration of traditional elk numbers and migration patterns... and reduce elk numbers toward the NER [the Refuge] objective of 5,000 elk." NPS-7547. It proposed particular geographic hunt areas to further these objectives, and also proposed prohibiting the harvesting of bulls in the Park. See NPS-7547-49. The agency's decision therefore articulates "a satisfactory explanation for its action" that includes "a `rational connection between the facts found and the choice made.'" State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S.Ct. 239).
Mayo claims that because the Governor and Superintendent decided a hunt was necessary despite the fact that the 11,000 elk herd population objective is now being met, the NPS's determination is arbitrary and capricious and contrary to the evidence before the agency. Not so. The agency's analysis clearly conceded that the 11,000 elk population target was being met. NPS-7547. But it indicated that the other objectives which were not being met — particularly the winter Refuge population and the bull-to-cow ratio — drove its decision.
The National Park Service Organic Act mandates, in relevant part, that the Secretary of the Interior, acting through the Director of the NPS, "shall promote and regulate the use of the National Park System" by means that "provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 54 U.S.C. § 100101(a).
Putting aside the parties' arguments about whether the agency is required to issue a non-impairment decision in writing,
Finally, to the extent Mayo claims that the impairment decision is "outdated" because recent agency briefing statements emphasize the effects of the elk reduction program on other park resources and values, see Mayo Pls.' Opp'n & Reply at 44-45, the Court concludes for the same reasons it concluded that no supplemental NEPA analysis was warranted that nothing in the record indicates that the effects on other Park resources are different in kind than they were anticipated to be in 2007, see, e.g. note 21, supra. That elk hunting may conflict with other park management goals does not undermine NPS's reasoned conclusion that it does not impair them, to which this court should defer. Cf. Davis, 202 F.3d at 365 ("Because the Organic Act is silent as to the specifics of park management, the Secretary has especially broad discretion on how to implement his statutory mandate."). On the basis of this record, Mayo's Organic Act claim fails.
Sierra Club brings several claims under the Endangered Species Act, contending that the FWS's 2013 Addendum could not lawfully amend the 2007 BiOp's incidental take statement or, alternatively, that the 2013 Addendum is arbitrary and capricious for various reasons. Mayo has incorporated Sierra Club's arguments by reference, See Mayo Pls.' Mem. Supp. at 35-36, and adds two additional grounds for finding the 2013 Amendment arbitrary and capricious. The Court will discuss each argument in turn.
The ESA "seeks to protect species of animals against threats to their continuing existence caused by man," Lujan v. Defs.
After a species is listed as endangered or threatened, Section 7 of the ESA requires that every federal agency, in consultation with the Secretary of the Interior, "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."
If the FWS "concludes that the agency action is not likely to jeopardize the continued existence of the species but is nonetheless likely to result in some "`incidental take'" of the species, "the BiOp must set forth an Incidental Take Statement, which specifies the permissible `amount or extent' of this impact on the species." Oceana, Inc. v. Pritzker, 125 F.Supp.3d 232, 237 (D.D.C.2015) (quoting 16 U.S.C. § 1536(b)(4)(B)); see also 50 C.F.R. § 402.14(i)(1) ("In those cases where the Service concludes that an action... and the resultant incidental take of listed species will not violate section 7(a)(2)... the Service will provide with the biological opinion a statement concerning incidental take"). To "take" an animal is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). In its BiOp, the FWS must also specify the "reasonable and prudent measures" that the Director "considers necessary or appropriate to minimize" the action's impact. 50 C.F.R. § 402.14(i)(1)(ii). If takes occur under the conditions provided for in the Incidental Take Statement, those takes are permissible, notwithstanding the ESA's prohibition on taking listed species. See id. § 402.14(i)(5); 16 U.S.C. § 1538(a)(1).
Finally, regulations require that the FWS and the applicable agency reinitiate formal consultation in four situations, including if "the amount or extent of taking specified in the incidental take statement
Intervenor-Defendant Safari Club first claims that the Plaintiffs in both cases have failed to establish standing to bring their ESA claims. Yet, Plaintiffs easily satisfy the strictures of Article III and prudential standing.
"The `irreducible constitutional minimum' for standing is (i) the party must have suffered a concrete and particularized injury in fact, (ii) that was caused by or is fairly traceable to the actions of the defendant, and (iii) is capable of resolution and likely to be redressed by judicial decision." Sierra Club v. EPA, 755 F.3d 968, 973 (D.C.Cir.2014). In other words, to establish standing as a constitutional matter a plaintiff must "demonstrate the existence of a `personal injury fairly traceable to the opposing party's allegedly unlawful conduct and likely to be redressed by the requested relief." Delta Air Lines, Inc. v. Exp.-Imp. Bank of U.S., 85 F.Supp.3d 250, 260 (D.D.C.2015) (brackets omitted) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). And, to show an injury in fact, a plaintiff must have suffered "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted).
For good reason, Safari Club does not dispute that Mayo, Nelson, and the members of Sierra Club, the Western Watersheds Project, and the Center for Biological Diversity have concrete and particularized interests in viewing the grizzly bear in the Park. See Mayo Safari Club's Mem. Supp. Cross-Mot. Summ. J. & Opp'n Pls.' Mot. at 4-5 ("Mayo Safari Club's Mem. Supp."), ECF No. 43; Sierra Club Safari Club's Mem. Supp. Cross-Mot. Summ. J. & Opp'n Pls.' Mot. at 2 ("Sierra Club Safari Club's Mem. Supp."), ECF No. 33; accord Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 432 (D.C.Cir. 1998) (en banc) ("The Supreme Court has repeatedly made clear that injury to an aesthetic interest in the observation of animals is sufficient to satisfy the demands of Article III standing."). For two reasons, however, Safari Club contends that an injury to Plaintiffs' aesthetic interest is not sufficiently actual or imminent to confer standing.
First, they claim that Plaintiffs have not shown any likelihood that their conceded interests will be harmed, because they cannot show it is imminent that another grizzly bear will actually be taken as a result of the elk reduction program. Mayo Safari Club's Mem. Supp. at 5. In focusing solely on the take of a grizzly bear, Safari Club asserts a crabbed view of the injury to Plaintiffs' interest. See Animal Legal Def. Fund, 154 F.3d at 437 ("[T]here is no case that we know of establishing that the elimination of a species or even the deaths of particular animals is an indispensable element of the plaintiffs' aesthetic injury, and we see no reason to import such a requirement into our standing doctrine so late in the day."). Mayo and Nelson assert that their aesthetic interests in the grizzly bear will be injured more generally because they are unable to view the animals "under natural, undisturbed conditions, when their innate characteristics and behaviors are more readily observed." See Mayo Decl. ¶ 1, ECF No. 35-1; Nelson Decl. ¶¶ 5-6,
Even if the Plaintiffs were required to show that another grizzly bear mortality was not conjectural or hypothetical in order to demonstrate an interest to their aesthetic interests in viewing and observing the grizzly bear, the FWS's conclusion that up to four bears will be taken during the remaining nine years of the 2007 Management Plan is sufficient to show an imminent injury. See FWS-1662-63. The connection between the 2007 Management Plan and the injury to Plaintiffs' aesthetic injuries is thus amply "supported by the administrative record."
Second, Safari Club also claims that Plaintiffs have not established that a grizzly bear might be taken "from an area where the Plaintiffs visit" or "would be a grizzly bear that the Plaintiffs would have been likely to see." Mayo Sierra Club's Mem. Supp. at 6. But Plaintiffs' declarations demonstrate that they regularly visit the Park and observe particular grizzly bears in the areas of the park open to elk hunting, where the 2007 Management Plan's effects are felt. This is not a case in which the plaintiffs have stated only that they "use unspecified portions of an immense tract of territory." Lujan v. Nat'l
Court's view, any requirement that the Plaintiffs further pinpoint the exact location where a grizzly bear is most likely to be taken or disturbed, or a particular bear that will be harmed, would establish a nearly impossible standard. Instead, courts have consistently held in ESA cases that an alleged injury to a population segment of animals the plaintiffs have directly visited, observed, or studied is sufficient to support standing. See, e.g., Oceana, Inc., 75 F.Supp.3d at 480 (distinguishing Lujan because plaintiffs "study and observe loggerheads who belong to the specific population segment that is adversely affected" by the challenged action); Sierra Club v. Mainella, 459 F.Supp.2d 76, 92 (D.D.C. 2006) (finding standing where "plaintiffs... have attested to their present and continued use of specific areas in close proximity to the wells and to areas that are directly affected by the wells"). Anything more specific would demand a far-too-narrow focus that plaintiffs would find difficult to meet.
Finally, the parties also dispute whether the "zone of interest" test applies to this case.
Safari Club also notes, correctly, that the zone of interests test does require a court to look "to the substantive provisions of the ESA, the alleged violations of which serve as the gravamen of the complaint." Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The organization falters, however, in suggesting that aesthetic interests somehow fall outside the zone of interests intended to be protected by Section 7's requirement that agencies consult regarding the impacts of their actions on endangered or threatened species. See Mayo Safari Club's Reply at
Plaintiffs in both cases have standing to pursue their ESA claims.
Sierra Club's first challenge to the 2013 Addendum is essentially one of process. The ESA's implementing regulations require federal agencies or the FWS to reinitiate formal consultation regarding an agency action's effects on an endangered or threatened species in several situations. These situations include if "the amount or extent of taking specified in the incidental take statement is exceeded" or if "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered." 50 C.F.R. § 402.16(a)-(b). Here, the NPS reinitiated consultation with the FWS once the incidental take authorized by the 2007 BiOp was reached, but before it was exceeded. After the NPS requested to reinitiate consultation, the FWS prepared a memorandum it described as an "addendum" to the 2007 BiOp. FWS-1661. The addendum documented the FWS's "analysis of the Park's new information, tiers off of our original biological opinion, and provides a new Incidental Take Statement ... reflect[ing] current conditions within the Park and Refuge." FWS-1662. The FWS asserted that the addendum and new incidental take statement "supersede[d] the previous 2007 ITS [incidental take statement]" and stated that "this addendum and new ITS are valid for the remaining 9 years under the 2007 biological opinion." Id. The addendum's new incidental take statement anticipated that four additional grizzly bears (for a total of five) might be incidentally taken in the Park, and an additional two bears may be taken on the Refuge.
The Court rejects Sierra Club's broader argument. Sierra Club has identified no authority for its proposition that, whenever the FWS reinitiates formal consultation, the consultation must result in the production of a new, full-blown BiOp. In fact, the FWS's Consultation Handbook, which details procedures for conducting consultation under Section 7 of the ESA, expressly provides for an addendum as a method of revising a BiOp's incidental take statement following the reinitiation of consultation. The handbook provides that "[d]ocumentation of a reinitiated consultation must be in writing, and must contain sufficient information to record the nature of the change in the action's effects and the rationale for amended analyses of anticipated incidental take or the reasonable and prudent alternatives or measures." U.S. Fish & Wildlife Serv. & Nat'l Marine Fisheries Serv., Endangered Species Consultation Handbook, at 4-64-4-65 (March 1998), https://www.fws.gov/ENDANGERED/esa-library/pdf/esa_section7_handbook.pdf [hereinafter "Consultation Handbook"]. And the handbook provides an example of a modified incidental take statement which, like the addendum at issue here, is brief and simply sets forth the new information and justifies the changes to the existing BiOp.
There is nothing in the ESA or its implementing regulations that expressly forecloses the use of an addendum to update a BiOp. The ESA merely requires that the Secretary "provide to the Federal agency... a written statement setting forth the Secretary's opinion." 16 U.S.C. § 1536(b)(3)(A); see also id. § 1536(b)(4) (explaining what must be included in that
Sierra Club also relies on the regulation's description of the FWS's "responsibilities during formal consultation." The regulation states that the FWS must "[r]eview all relevant information provided by the Federal agency or otherwise available," "[e]valuate the current status of the listed species or critical habitat," "evaluate the effects of the action and cumulative effects on the listed species or critical habitat," and then "[f]ormulate its biological opinion." 50 C.F.R. § 402.14(g)(1)-(4). There is every indication that the FWS did so here: it considered the new information the NPS provided by memo, see FWS-1564-68, FWS-1662; it discussed the current status of the grizzly bear with specific reference to recent Interagency Grizzly Bear Study Team findings, see FWS-1663-64; and it evaluated those effects in the addendum and, by reference, the 2007 BiOp, see generally FWS-1661-98. The operative question is what form the biological opinion resulting from the second, reinitiated consultation should take. And there is nothing to indicate that the FWS cannot confine the "written statement" it issues after formal consultation to an addendum that simply discusses the new information that gave rise to the request to reinitiate consultation and incorporate by reference any undisturbed portions of the original BiOp.
First, Sierra Club contends that the addendum failed to take into account the decline of the whitebark pine in the GYE, whose seed cones have been a reliable food source for the grizzly bear. See Sierra Club Pls.' Mem. Supp. at 25; see also, e.g., FWS-2072 (2012 Annual Report of the Interagency Grizzly Bear Study Team discussing the decline). But the 2013 Addendum makes clear, albeit somewhat obliquely, that the FWS considered the declining food source in again confirming that it did not believe the number of bears affected by the Plan would jeopardize the continued existence of the GYE grizzly bear. The addendum acknowledged that the grizzly bear population growth rate has slowed. See FWS-1663. The FWS stated, however, that "[t]he slowing population growth rate has been anticipated and may be due to one or a combination of density-dependent effects or declines in key food sources." Id. (emphasis added). In that paragraph the FWS noted that it drew its population estimates from the Interagency Grizzly Bear Study Team's ("IGBST") 2011 Report. The report, itself, explicitly states that the study team "hypothesized these changes in population growth may be attributed to 1) density-dependent effects, 2) declines in key food resources such as whitebark pine seeds, or 3) a combination of density-dependent effects and resource decline." FWS-1586 (emphasis added). Thus, although the addendum does not explicitly mention the whitebark pine out-right, the agency's reliance on the Study Team's analysis — and its recitation of nearly identical language — makes clear that the agency did consider the decline in whitebark pine as a cause of the slowed population growth.
Second, Sierra Club argues that the addendum failed to consider updated information about the scope and duration of the elk reduction program in the Park. But the original biological opinion was based on the 2007 Management Plan's projection that the number of hunters on the Park would increase in the short-term from 1,600 to around 2,200 and then decrease in the long-term to 773-957 per year. See FWS-1686. The number of elk harvested was similarly expected to rise in the short term to around 650, and then decrease in the long term to 232 to 287. See id. When it reinitiated consultation, the NPS included a chart listing the permits issued and elk harvested in each year between 2007 and 2012 (with anticipated permits listed for 2013). See FWS-1567. These numbers generally track and are well within the ranges envisioned by the 2007 Management Plan. As already explained above with reference to the Plaintiffs' NEPA arguments, while there has not yet been a meaningful decline in the number of elk on supplemental feed on the Refuge, elk hunting in the Park has, by contrast, generally decreased as the 2007 Management Plan anticipated.
The Court ultimately agrees with Defendants that nothing precluded the FWS from setting forth the results of its reinitiated consultation in an addendum that incorporates the portions of the original BiOp that remain unchanged, and similarly rejects Sierra Club's various arguments that several significant changed circumstances
Next, Sierra Club argues that the FWS's addendum is arbitrary and capricious because the agency failed to consider and evaluate the impact of the other incidental takes of the grizzly bear that had been authorized in the GYE since 2007 when making its "no jeopardy" finding. See Sierra Club Pls.' Mem. Supp. at 14-21. On this score, the Court agrees that the agency has failed to demonstrate that it even considered this important problem, and will grant summary judgment to Plaintiffs on this ground.
During formal consultation, the FWS must evaluate "the effects of the action and cumulative effects on the listed species or critical habitat." 50 C.F.R. § 402.14(g). The effects of the action include the "direct and indirect effects of an action on the species ... together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline." Id. § 402.02. And the "environmental baseline" is defined to include:
Id. As courts in this district have previously explained, an action's impact "cannot be determined or analyzed in a vacuum, but must necessarily be addressed in the context of other incidental take authorized by FWS." Defs. of Wildlife v. Babbitt, 130 F.Supp.2d 121, 127 (D.D.C.2001). Although this does not "impos[e] a requirement that each [BiOp] include a collective jeopardy finding," Defs. of Wildlife v. Norton, No. 99-927, 2003 WL 24122459, at *5 (D.D.C. 2003), the FWS must nevertheless engage in a meaningful "analysis of the status of the environment baseline given the listed impacts, not simply a recitation of the activities of the agencies," Babbitt, 130 F.Supp.2d at 128. The FWS must therefore evaluate the impact of an agency's action "in light of the environmental baseline" even if the BiOp "does not numerically add the takes from different sources together." Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 230 (D.D.C.2005).
Here, the 2013 Addendum contains no discussion of the environmental baseline at all, nor does it update the discussion contained in the 2007 BiOp. Defendants concede that the 2013 Addendum does not "explicitly articulate its additional analysis of the environmental baseline, including the consideration of previously anticipated incidental take." Sierra Club Defs.' Mem. Supp. at 24. This is so despite the FWS's acknowledgement that it has engaged in several formal consultations — and authorized a number of incidental takes — throughout the GYE since 2007. When discussing the environmental baseline, the original 2007 BiOp listed the particular past projects that had resulted from previous formal consultations "in the vicinity of the action area," and stated that the projects,
To salvage the 2013 Addendum, Defendants point to a spreadsheet in the record containing information on all the BiOps in the GYE, and an e-mail from a FWS Wildlife Biologist referencing that spreadsheet. On the basis of these documents, Defendants claim that "the record shows that this information was, in fact, considered." Sierra Club Defs.' Mem. Supp. at 24. They argue that "in preparing any biological opinion involving grizzly bears, the FWS's Wyoming Field Office wildlife biologist ... would consult the spreadsheet she created specifically to track anticipated grizzly bear incidental take in the GYE" and that she "performed [that] analysis here." Id.
The record belies this contention. For one thing, the e-mail indicates that the biologist was reviewing the spreadsheet to determine whether the BiOps required "annual reporting," which is a requirement for issuing an incidental take statement. FWS-2127. It was only during that discussion that the Park's Wildlife Biologist — the recipient of the e-mail — raised that the incidental take of one grizzly bear anticipated for the 2007 Management Plan had been reached, and discussed the possibility of reinitiating consultation. Id. Thus, it is a stretch to cite this e-mail, and the spreadsheet, as the sole evidence that the biologist "regularly" considers the other BiOps and incidental take statements when amending a BiOp or creating a new one. As just explained, the 2007 BiOp explicitly referenced the other projects it had considered, but there is no similar indication in the 2013 Addendum.
Even if this e-mail does imply that the biologist would typically consult the spreadsheet when formulating an addendum to a BiOp, however, the record is silent on whether she did so when considering the 2013 Addendum at issue here. Although the spreadsheet "may provide enough factual evidence for the agency's conclusion," the Court "cannot defer to agency expertise that was never explained." Tex Tin Corp. v. EPA, 935 F.2d 1321, 1324 (D.C.Cir.1991); see also Gerber v. Norton, 294 F.3d 173, 185 (D.C.Cir.2002) ("When a statute requires an agency to make a finding as a prerequisite to action, it must do so. Merely `[r]eferencing a requirement is not the same as complying with that requirement.'") (alteration in original) (quoting Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C.Cir.2002)). Moreover, the only version of the spreadsheet in the record, as Defendants concede, post-dates the 2013 Addendum and erroneously omits certain BiOps. See Sierra Club Defs.' Mem. Supp. at 24 n.14, 30; see also FWS-1710-15 (reproducing more recent version of the spreadsheet).
To be sure, nothing in the statute or regulation requires the FWS to rigidly add up each incidental take. See Oceana, Inc., 384 F.Supp.2d at 230. But in order to fully consider the effects of the 2007 Management Plan when it amended the 2007 BiOp, the FWS must at least "take[] the baseline seriously and make[] a concerted effort to evaluate the impact of [an agency's] proposed action against that backdrop." Id. (citation omitted) (final alteration in original). Without any indication in the record that the FWS adequately considered the environmental baseline as of 2013, the Court must grant summary judgment to Plaintiffs because it appears that
The Court believes, however, that the best course here is to remand the 2013 Addendum without vacatur. Although an "unsupported agency action normally warrants vacatur," a court "is not without discretion." Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C.Cir. 2005); see also Sec. Indus. & Fin. Mkts. Ass'n v. U.S. Commodity Future Trading Comm'n, 67 F.Supp.3d 373, 434 (D.D.C. 2014) ("Courts have the discretion, however, to remand without vacating an inadequately explained rule."). Whether to vacate "depends on `the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.'" Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C.Cir.1993) (quoting Int'l Union, UMW v. FMSHA, 920 F.2d 960, 967 (D.C.Cir. 1990)). Remanding to the agency without vacatur is "appropriate where `there is at least a serious possibility that the [agency] will be able to substantiate its decision on remand.'" Nat'l Parks Conservation Ass'n v. Jewell, 62 F.Supp.3d 7, 20 (D.D.C.2014) (alteration in original) (quoting Allied-Signal, Inc., 988 F.2d at 151).
Here, the Court believes there is a serious possibility that the FWS will be able to substantiate its no jeopardy conclusion on remand, once the other incidental takes are taken into account. Both Plaintiffs and Defendants agree on the data, but disagree about its import. The 2013 Addendum based its no jeopardy conclusion, in part, on the "overall sustainable annual mortality levels" for the grizzly bear the IGBST had reported over the last 5 years. See FWS-1663-64. Sierra Club claims that as of 2012, the sustainable annual mortality threshold for female bears was 9% and, with an estimated adult female bear population of 257, the population could sustain a maximum of 23 mortalities per year before the population would begin to decline.
As Defendants point out, however, there is an immediately apparent analytical flaw in Sierra Club's contention. Sierra Club assumes that the collective incidental take authorized in these BiOps (or much of it) will happen in a single year. Yet, there does not appear to be any scientific or record-based support for that assumption.
In many cases, the authorized incidental take was forecasted to take place over many years. For example, one project in Yellowstone National Park anticipated 4 grizzly bears being taken, total, over the course of a twenty-year project. See FWS-1710-12 (FWS project number WY12F0135, noting the anticipated take of 4 bears "through 2032"). Another anticipated the taking of two grizzly bears in the Shoshone National Park over a ten-year period. See FWS-1711-13 (FWS project number WY13F0010). Thus, Defendants are correct to point out that "take was not anticipated to occur all at once," but was anticipated to occur "across the life of those biological opinions." Sierra Club Defs.' Mem. Supp. at 28. And the spreadsheet included in the administrative record notes minimal numbers of incidental takes taking place thus far.
Plaintiffs are correct to note that nothing affirmatively prevents multiple takes from occurring in close succession. Sierra Club Pls.' Opp'n & Reply at 8-9. But it may not be unreasonable for the agency to conclude that this possibility is unlikely. Cf. Babbitt, 130 F.Supp.2d at 130 ("The Court recognizes that the authorization of an incidental take by these [BiOps] does not necessarily mean that take will occur, or that it will occur at the level anticipated."). Moreover, as Defendants note, Plaintiffs' reference to the mortality limits do not necessarily provide a perfect comparison, because mortality limits are simply a single management measure and are not intended as a proxy for the FWS's jeopardy determination. See Sierra Club Defs.' Mem. Supp. at 27. Indeed, those limits may be exceeded in a single year, but the IGBST will not necessarily take action unless the trend is sustained over multiple years. See, e.g., FWS-1597 (2011 IGBST report explaining that "[e]xceeding independent female mortality limits for 2 consecutive years," and 3 years for both dependent young and independent adult males, "will trigger a biology and management review").
As for the second Allied-Signal factor — the likely disruptive consequences — the Court does not find this factor to weigh clearly in favor of vacatur or against it. If the Court were to vacate the FWS's 2013 no jeopardy finding, the status quo is unlikely to change. Because the incidental take anticipated in the 2007 BiOp has not yet been exceeded (and because the Court has already concluded that Plaintiffs are unable to identify any new information
Thus, the Court finds this factor of limited relevance, and bases its conclusion on the serious possibility that the FWS will be able to justify its no jeopardy finding on remand. See Fox Tel. Stations, Inc. v. FCC, 280 F.3d 1027, 1049 (D.C.Cir.2002) (finding the disruption that might be caused "only barely relevant" and concluding that "though the disruptive consequences of vacatur might not be great, the probability that the Commission will be able to justify retaining the [relevant] Rule is sufficiently high that vacatur of the Rule is not appropriate").
Accordingly, the Court finds that the 2013 Addendum currently fails to adequately justify or explain its consideration of the environmental baseline, because it fails to discuss the relevance of the other anticipated incidental takes in the action area.
In its amended incidental take statement, the FWS concluded that "up to 4 additional grizzly bears in the Park ...
The administrative record contains handwritten notes which spell out the agency's calculation and indicate that the new incidental take figure was based on the rate of take over the first several years of the 2007 Management Plan as well as the increasing grizzly bear population and distribution in the Park. See FWS-1569. The notes indicate that the take of one grizzly bear over the first six years of the plan resulted in an average take of 0.167 bear per year. Id. Assuming this same rate over the course of the remaining nine years of the plan, the notes project that 1.5 grizzly bears could be taken, which was rounded up to two bears. Id. Noting that the population was increasing at an "unknown rate," and that other uncertainties existed, including the variation in the rate of growth over the years potentially spurred by "drought" or "early onset winter," the notes state that it is "reasonable" to increase the incidental take by one to two bears. FWS-1569-70. Thus, the agency proposed a new incidental take of three to four bears in the Park. FWS-1569. These notes sufficiently set forth how the new anticipated incidental take was derived. See also NPS-6859-60 (acknowledging, in response to Mayo's notice of intent to sue, that the FWS's "explanation could have been clearer," and providing a description of the calculation that matches the notes). Although this calculation is not reproduced in the 2013 Addendum, the notes contain a "`contemporaneous explanation of the agency decision,' and are therefore appropriate subjects for [a court's] consideration." Tourus Records, Inc. v. Drug Enf't Admin., 259 F.3d 731, 738 (D.C.Cir.2001) (quoting Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). Contrary to Mayo's assertions, the record therefore makes plain that the FWS did not simply pull this anticipated take figure "out of thin air." Mayo Pls.' Mem. Supp. at 36-37. Accordingly, the new anticipated incidental take determination was not arbitrary and capricious.
Mayo also contends that the 2013 Addendum fails to address the taking of a grizzly bear by harassment when bears are attracted to the gut piles elk hunters leave behind. Mayo Pls.' Mem. Supp. at 37. The ESA defines to "take" as including: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Harass is further defined by the ESA's implementing regulations 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
The 2007 BiOp noted that grizzly bears in the Yellowstone Ecosystem "have the highest percentage of meat consumption in their diet of any inland grizzly bear population" and that "[m]eat constitutes as much as 79 percent of the diet of male, and 45 percent of the diet of female grizzly bears" in that ecosystem. FWS-1672; see also FWS-1682 ("Bears that are typically wary of humans will often tolerate people at close distances when carcasses or other high quality foods are available."). Moreover, the BiOp explained that ungulates "are an especially important food source for bears in the spring and fall" and that the "use of these carcasses" is "well documented." FWS-1672. In the 2013 Addendum, the FWS again noted that grizzly bears "seek[] out gut piles left on the landscape during the ERP [Elk Reduction Program] on Park lands." FWS-1662. Despite these acknowledgements, the FWS did not explicitly discuss whether the inclusion of gut piles in the grizzly bear's diet or its efforts to seek those gut piles out "significantly disrupted" the grizzly bear's natural feeding patterns to constitute harassment.
As Defendants point out, the remainder of the record which was before the agency and, in most instances, cited in some regard in the BiOp and Amended BiOp, contains numerous references to animal carcasses as part of the grizzly bear's diet. For example, a 2005 IGBST report that the FWS cited in its 2007 BiOp found that "[g]rizzly bears most commonly fed on carcasses (including elk calf predations), on insects, or grazed on vegetation." FWS-1352; see also FWS-705 (2001 IGBST report finding that "[t]he grizzly bears have learned to utilize the created food source (elk viscera)"). More to the point, a 2004 study contained in the administrative record indicates that during the "2 bear generations" that "have passed since legal hunting was stopped and grizzly bears in the GYE were given protected status," the "long-standing tradition of early elk harvest seasons adjacent to YNP [Yellowstone National Park] has provided considerable food resources to bears with presumably little negative impact (for bears not killed in conflicts) from increasing familiarizations with humans." FWS-1029 (emphasis added) (internal citation omitted). The agency's silence in the face of this evidence implies that it did not consider these activities to rise to the level of "harassment," as that term is used in the taking context.
Mayo challenges Defendants' argument as a post hoc rationalization, and claims that there is no indication in the record that the FWS explicitly considered the harassment issue. Mayo Pls.' Opp'n & Reply at 39-40 & n.22. But even if the 2007 BiOp and the 2013 Addendum left the agency's conclusion implicit, the agency's response to a letter Mayo submitted indicating his intent to sue for violations of the ESA made the connection explicit. The FWS and the NPS issued a joint response to that letter, in which Mayo had argued that the FWS had failed to address all forms of take that may be associated with the elk reduction program, including the harassment of grizzly bears through the creation of gut piles. See NPS-6860-61. The joint response asserted that the agencies "disagree that the seeking out of gut piles by grizzly bears is [a] `take' in the form of harassment" because, among other things, "[g]ut piles/remains from hunter-killed elk and bison ... differ little from gut piles/remains from natural predation (such as by cougars or wolves) or death, except that they are the result of human
Mayo also argues that "the `best available' science reflects" that this type of take "is indisputably associated with the hunts" and that the "record is replete with evidence that these gut piles — which exist only because of the NPS-authorized hunt — have an enormous effect on grizzly bears' natural feeding behavior in the Park." Mayo Pls.' Mem. Supp. at 37. The evidence Mayo relies on does not support his claim. Most of the portions of the record he cites either merely acknowledge that bears seek out gut piles during hunting season or describe particular incidents in which bears were observed approaching or feeding on gut piles. See NPS-3250 (2008 advisory to hunters that "grizzly bears seek out gut piles during the hunting season"); NPS-4127 (incident report describing grizzly bear's approach of a hunter gutting an elk); NPS-4663 (incident report describing three bears eating gut piles); NPS-4695 (incident report describing seeing four bears congregating around the remains of a hunter-harvested elk); NPS-4697 (incident report describing four bears eating gut piles); NPS-4709 (incident report describing four bears eating gut piles); NPS-5238 (incident report describing four to five bears eating gut piles). That evidence aligns with, rather than conflicts with, the agency's determination that feeding on gut piles is not unusual or disruptive to the grizzly bear.
The other two sources of information are wholly unpersuasive. One is a newspaper quote from "a Jackson resident and full-time wildlife photographer" — in other words, not a scientific expert — asserting that he believes "[t]he grizzly bears have become dependent on the gut piles for food before going into hibernation," which "means that the cubs growing up will not know another way to get their food and could starve — even now in hunting season the bears don't bother to hunt for themselves." NPS-7345. The other is an e-mail message Mayo sent to Park officials asserting that a particular bear, "[g]rizzly mom 399" had "taught her prior three cubs (including her daughter and now grizzly mom 610) to follow the park elk hunters down the Snake River drainage feasting on abandoned gut piles," implying that such conditioning is unnatural. NPS-5127. Yet, this anecdotal, unsupported evidence from laypeople is hardly the "best scientific and commercial data available" that the FWS and NPS are required to rely on when consulting on the ESA. 16 U.S.C. § 1536. Despite Mayo's contention that the gut piles discarded by hunters during the elk hunt have disrupted the grizzly bear's natural feeding behaviors, the agency has come to the opposite conclusion. A court must "give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise." Cmtys. for a Better Env't v. EPA, 748 F.3d 333, 336 (D.C.Cir.2014) (quoting City of
Finally, Sierra Club argues that the FWS failed to consider specifying additional reasonable and prudent measures in the 2013 Addendum. The ESA requires that, if the FWS concludes that a federal action will not jeopardize a listed species, the FWS shall "specif[y] those reasonable and prudent measures that [the FWS] considers necessary or appropriate to minimize [the action's] impact" and "set[] forth the terms and conditions" that the agency must comply with in order to implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4)(ii), (iv). The ESA's implementing regulations require that these measures and conditions be included in the incidental take statement. See 50 C.F.R. 402.14(i)(1)(ii), (iv). Reasonable and prudent measures are defined as "those actions the Director believes necessary or appropriate to minimize the impacts, i.e., the amount or extent of incidental take." Id. § 402.02.
The original 2007 BiOp set one reasonable and prudent measure to minimize the impacts of incidental take of grizzly bears: the "education of hunters." FWS-1692. Sierra Club contends that the FWS acted arbitrarily and capriciously in failing to consider specifying any new reasonable or prudent measures in the 2013 Addendum. See Sierra Club Pls.' Mem. Supp. at 27-29; Sierra Club Pls.' Opp'n & Reply at 20. Sierra Club's contention is plainly incorrect, and it is clear from the record that the FWS considered whether to revise the 2007 BiOp's reasonable and prudent measures. The addendum states that the Service "believes that the Park has adhered to all original conservation measures as required and that these measures are appropriate, adequate, and do not need revising." FWS-1664 (emphasis added); see also NPS-6862 (in response to Mayo's intent to sue letter, pointing to the same language and explaining that the agency believed that the 2007 BiOp's reasonable and prudent measure, along with the other measures the Park had implemented, "were thorough and appropriate for minimizing IT [Incidental Take] of grizzly bears from ERP [Elk Reduction Program] implementation"). Sierra Club also points to the addendum's discussion of changes that Park staff and WFGD had made for the 2013 hunt, including the closure of certain areas of the Snake River bottom to hunting, beginning the hunt two weeks later in the season, limiting ammunition carried into the field, and limiting the number of shots hunters can take at a group of running elk. See FWS-1662. All of these changes were identified in the addendum, and Sierra Club argues that several possible reasonable and prudent measures were therefore "readily apparent" to FWS, but the agency neither discussed nor analyzed whether "any of these limitations should be made permanent as reasonable and prudent measures." Sierra Club Pls.' Mem. Supp. at 28, It is questionable, however, whether FWS would have the authority to do so. Congress delegated to the Secretary of the Interior (who has further delegated authority to the NPS) and the WGFC the authority to approve and issue orders and regulations that are "necessary to carry out those portions of the approved plan that fall within their respective jurisdictions." 16 U.S.C. § 673c(b). And, as Defendants point out, the ESA's implementing regulations state that reasonable and prudent measures "cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes." 50 C.F.R. § 402.14(i)(2).
The NPS, as the action agency in this case, "`need not undertake a separate, independent analysis' of the issues addressed in the BiOp." City of Tacoma, Wash. v. FERC, 460 F.3d 53, 75-76 (D.C.Cir.2006) (quoting Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1161 (9th Cir.1999)). Nevertheless, an action agency's "reliance on a facially flawed BiOp would likely be arbitrary and capricious," and "the action agency must not blindly adopt the conclusions of the consultant agency, citing that agency's expertise." Id. at 76. Because the Court has concluded that the 2013 Addendum failed to explicitly discuss the effects of the other BiOps and authorized incidental take statements affecting the action area, the Court similarly finds that NPS acted arbitrarily and capriciously in relying on the 2013 Addendum. As explained above, however, the Court will remand the addendum without vacatur.
For the foregoing reasons, Plaintiffs' respective motions for summary judgment (Mayo ECF No. 35, Sierra Club ECF No. 26) are
At the same time, however, the Court is sensitive to Defendants' contention that the 11,000 herd objective was selected as part of the elk management plan adopted in the 2007 Management Plan, and that the Plaintiffs or other parties could have challenged that objective as arbitrary and capricious, but did not do so within the six-year statute of limitations. See 28 U.S.C. § 2401(a). Moreover, as part of that process the NPS presumably determined that maintaining the herd at 11,000 elk was consistent with the long-term conservation of the elk. See Nat'l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1327 (D.C.Cir. 2004) ("When an agency is evaluating scientific data within its technical expertise, an extreme degree of deference to the agency is warranted."). Ultimately, because the joint recommendation conceded that the overall population objective was being met but nevertheless concluded that a hunt was necessary to meet other objectives of the 2007 Management Plan, the Court need not resolve the issue in order to uphold the 2015 elk hunt determination.
