Nelson v. Reynolds, 875 F.3d 11

Background

Grand Teton National Park and the National Elk Refuge together manage the Jackson elk herd; Park Service (Grand Teton) and U.S. Fish & Wildlife Service (Refuge) adopted a 15-year elk-management plan in 2007 (the 2007 Plan) with a supporting EIS that analyzed six alternatives and selected an elk-reduction program relying in part on annual authorized hunting.
The 2007 EIS expressly contemplated annual hunting authorizations over the Plan’s term and analyzed hunting’s effects on elk population, distribution, other wildlife (including grizzlies), human safety, and recreation.
From 2007–2015 the Park Service used the 2007 Plan/EIS to authorize annual hunts; herd size, authorized harvest, and deputized hunters declined overall, but FWS did not fully reduce supplemental winter feeding on the Refuge as the Plan envisioned.
Photographers Kent Nelson and Timothy Mayo sued in 2014 challenging the Park Service’s 2015 hunt authorization under NEPA, ESA, the Park’s enabling statute, the Organic Act, and the APA; the district court granted summary judgment for the government on NEPA and related claims; Nelson appealed (Mayo did not).
Nelson’s NEPA challenge argued the Park Service must prepare a new EA or EIS each year (or at least a supplemental EIS) because annual authorizations are separate "major Federal actions," and because FWS’s continued supplemental feeding constituted significant new circumstances.
The D.C. Circuit affirmed the district court on NEPA grounds (agency need not re-do NEPA every year where a prior EIS adequately analyzed the impacts), and vacated the district court judgment on the ESA claim as moot due to delisting of the grizzly.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether each annual hunt authorization is a "major Federal action" requiring a new EA/EIS (or supplementation)	Nelson: each year’s authorization has particular timing, location, and restrictions and thus requires new NEPA analysis	Park Service: annual authorizations are steps implementing the 2007 Plan; the 2007 EIS already took the requisite "hard look" and covered annual implementation	Held: No new NEPA doc required; 2007 EIS was sufficiently thorough and contemplated annual hunts, so no supplementation was necessary absent a material, unforeseen change
Whether the agencies abandoned the 2007 Plan so prior EIS is inapplicable	Nelson: implementation deviated (notably FWS continued supplemental feeding), so reliance on 2007 EIS is improper	Park Service: Plan largely followed; hunting authorizations remained within Plan projections	Held: Record shows implementation matched Plan expectations for hunting; abandonment claim fails
Whether FWS’s continued supplemental feeding created "significant new circumstances" requiring supplementing the 2007 EIS	Nelson: continued supplemental feeding altered environmental baseline such that additional NEPA analysis of hunts was required	Park Service: supplemental feeding is an FWS action on the Refuge; hunting impacts in the Park were contemplated in 2007 EIS and current implementation metrics do not show increased hunting due to feeding	Held: Continued feeding did not create a "seriously different picture" of hunting’s impacts; no supplemental EIS required; appellant must challenge FWS directly if he wishes to contest feeding
ESA consultation adequacy re: grizzly bears	Nelson: biological opinion and addendum failed to address certain impacts (e.g., harassment from gut piles)	Agencies: consulted and issued biological opinion concluding no jeopardy; later addendum estimated limited take	Held: Claim is moot because grizzly bear was delisted; district court’s ESA judgment vacated as moot

Key Cases Cited

Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (agencies must "take a hard look" and disclose significant environmental impacts)
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA is procedural; no substantive mitigation-plan requirement in every EIS)
Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 ("rule of reason"—supplemental EIS required only for significant new circumstances or effects)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard for agency action)
Pub. Citizen v. Dep’t of Transp., 541 U.S. 752 (NEPA requires reasoned, useful environmental analysis; courts apply rule of reason)
New York v. U.S. Nuclear Regulatory Comm’n, 824 F.3d 1012 (D.C. Cir.) (upholding programmatic EIS incorporated into future decisions)
Sierra Club v. FERC, 867 F.3d 1357 (NEPA is information-forcing; review under APA)
Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323 (supplementation required only where new information provides a seriously different picture)
Theodore Roosevelt Conserv. P’ship v. Salazar, 661 F.3d 66 (tiering and reliance on programmatic EIS; limits on when site-specific analyses are required)
United States v. Munsingwear, 340 U.S. 36 (mootness: vacatur of lower-court judgment when case becomes moot on appeal)