Mayo v. Jarvis, 203 F.Supp.3d 31

Background

Plaintiffs challenged NPS and FWS actions governing an annual elk reduction hunt in Grand Teton National Park and effects on threatened grizzly bears under the ESA and other statutes.
The FWS issued a 2007 Biological Opinion (BiOp) finding no jeopardy to grizzlies from the elk/bison management plan and anticipating one lethal incidental take over 15 years; a 2013 Addendum increased anticipated lethal take in the Park to five bears.
Plaintiffs argued the BiOp/Addendum failed to analyze whether grizzlies attracted to hunter-produced elk gut piles suffered "take" by harassment (disruption of feeding behavior).
The district court previously granted summary judgment for defendants on the harassment claim, concluding the BiOp and Addendum implicitly showed the agencies did not consider gut-pile feeding to be harassment; the court also granted one claim in a related Sierra Club case regarding failure to consider other incidental take in the Greater Yellowstone Ecosystem (GYE).
Plaintiffs moved for partial reconsideration, arguing the court improperly relied on a post-decision agency letter; Defendants moved to amend judgment to correct the court’s incorporation-by-reference of the Sierra Club argument.
The court (1) denied Plaintiffs’ reconsideration (finding the BiOp/Addendum alone permit discerning the agency’s reasoning and thus no arbitrary-and-capricious error) and (2) granted Defendants’ motion to amend judgment, entering judgment for Defendants on all counts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FWS violated ESA by failing to treat grizzly attraction to hunter-created gut piles as "take" via harassment	The BiOp/Addendum did not adequately analyze or rule out harassment; court relied impermissibly on a post-decision letter	BiOp/Addendum discussed gut-pile availability and grizzly diet; those documents reasonably imply agency concluded gut-pile feeding is not harassment	Held for Defendants: the BiOp/Addendum (without relying on the letter) allow a reasonable discernment that FWS did not consider gut-pile feeding to be harassment; no arbitrary-and-capricious error
Whether the district court may consider the agencies’ post-decision explanatory letter	Letter is a post-hoc rationalization and should not be relied on to uphold the BiOp	Agency decisionmakers reiterated and amplified reasoning; such amplification can be considered if it merely explicates the original record	Court declined to rely on the letter for its decision but explained such letters may be permissible when they amplify reasoning of the decisionmaker rather than supply new rationales
Whether the court erroneously incorporated by reference a prevailing Sierra Club claim about cumulative incidental take in the GYE	Plaintiffs here did not adopt the specific Sierra Club argument that succeeded	Defendants argued the court mistakenly treated Plaintiffs as having incorporated that Sierra Club argument	Court agreed with Defendants that incorporating-by-reference was erroneous and amended judgment to enter judgment for Defendants on all counts
Proper standard for reviewing agency silence/implicit reasoning in a BiOp	Plaintiffs: silence cannot sustain agency action; agency must explicitly address the potential take	Defendants: courts may uphold decisions where the agency’s path may reasonably be discerned from the record and BiOp discussion	Court applied Bowman standard: will uphold less-than-ideal clarity if the agency’s reasoning can reasonably be discerned from the administrative record; held agency met that standard

Key Cases Cited

Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (agency action upheld if its path may reasonably be discerned)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29 (post hoc rationalization doctrine and arbitrary-and-capricious review)
Point Park Univ. v. NLRB, 457 F.3d 42 (court may only look to the agency's stated rationale)
Gerber v. Norton, 294 F.3d 173 (statutory prerequisite findings must be made by the agency)
Miller v. Lehman, 801 F.2d 492 (courts may refer to clearly relevant sources other than a formal statement of reasons)
Envtl. Def. Fund, Inc. v. EPA, 465 F.2d 528 (courts do not demand sterile formality in agency explanations)
Local 814, Int’l Bhd. of Teamsters v. NLRB, 546 F.2d 989 (distinguishing forbidden post hoc rationalizations from permissible agency elaboration)
Population Institute v. McPherson, 797 F.2d 1062 (agency may further articulate its reasoning during litigation if decisionmaker expands on original rationale)
Appeal of Bolden, 848 F.2d 201 (administrative amplification can be treated as amplification of the record rather than impermissible new rationale)
Firestone v. Firestone, 76 F.3d 1205 (standard for Rule 59(e) relief)
Piper v. U.S. Dep't of Justice, 312 F. Supp. 2d 17 (correcting clear error under Rule 59(e))