177 F. Supp. 3d 91
D.D.C.2016Background
- The National Park Service (NPS) and Fish and Wildlife Service (FWS) adopted a 2007 Bison and Elk Management Plan (EIS/ROD) covering Grand Teton NP and the National Elk Refuge; Plan authorized an adaptive elk reduction program (annual hunts) to meet herd, sex-ratio, and refuge wintering targets.
- The Enabling Act authorizes controlled elk reduction in Grand Teton when necessary for proper management and requires joint annual recommendations by Wyoming and NPS. Since 2007 the Park/Governor annually approved hunts (harvest targets 300–600 elk).
- The 2007 FWS Biological Opinion (BiOp) concluded the Plan would not jeopardize GYE grizzly bears and anticipated 1 incidental grizzly death over 15 years; education of hunters was the sole R&P measure.
- After a hunter killed a grizzly in 2012, NPS requested reinitiation; in 2013 FWS issued an addendum amending the incidental-take statement to authorize up to 4 additional grizzly takes in the Park (plus 2 on the Refuge) through 2022 and retained prior R&P measures.
- Plaintiffs (Mayo; Sierra Club and others) challenge: (1) NPS’s failure to prepare an EA/EIS annually under NEPA; (2) NPS’s Organic Act / Enabling Act findings; and (3) FWS’s 2013 Addendum under the ESA (procedural and substantive defects). Court consolidated resolution across related suits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA: whether annual hunt approvals require a new EA/EIS or supplementation | Mayo: Each annual discretionary hunt decision is a "site-specific" major federal action requiring separate NEPA analysis or supplementation because conditions changed. | NPS: The 2007 Programmatic EIS analyzed elk hunting effects at the Park site; it was sufficiently detailed and anticipated adaptive, annual decisions; no supplemental EIS required. | Court: Held for Defendants — the 2007 EIS took the required "hard look" as to Park hunting and supplementation was not compelled on the record. |
| Enabling Act: whether NPS adequately found the 2015 hunt "necessary for proper management and protection of the elk" | Mayo: NPS failed to provide a reasoned basis for finding the hunt necessary. | NPS/Wyoming: The joint recommendation documents herd size, refuge wintering numbers, bull:cow ratios and technical data supporting necessity. | Court: Held for Defendants — the 2015 decision articulated a rational connection between facts and choice. |
| Organic Act / non-impairment: whether hunting impairs park resources and required a new non-impairment finding | Mayo: NPS failed to make a written non-impairment finding for the 2015 hunt and earlier hunts. | NPS: The 2007 ROD contains an explicit non-impairment conclusion and the EIS explains why hunting does not impair park resources. | Court: Held for Defendants — the Record of Decision and EIS constitute an adequate non-impairment determination. |
| ESA / 2013 Addendum: whether FWS lawfully amended the BiOp via addendum and properly considered environmental baseline, takes, and R&P measures | Sierra Club/Mayo: (a) addendum procedure insufficient (need new BiOp); (b) FWS failed to account for other authorized incidental takes in the action-area baseline; (c) FWS ignored new information (whitebark decline, gut piles/harassment); (d) failed to add R&P measures. | FWS: Addendum is a permissible, documented product of reinitiated consultation that tiers to the 2007 BiOp; it considered relevant science and retained appropriate measures. | Mixed: Court upheld use of an addendum and most substantive aspects, but granted Plaintiffs summary judgment on FWS’s failure to analyze/update the environmental baseline (other authorized incidental takes). Court remanded the 2013 Addendum to FWS for further baseline analysis but did not vacate. |
Key Cases Cited
- Defenders of Wildlife v. Salazar, 651 F.3d 112 (D.C. Cir.) (upholding adaptive, programmatic plan while noting agencies must commit to ending problematic practices)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard requires reasoned explanation and rational connection between facts and choice)
- Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) (NEPA requires agency to take a "hard look" and inform the public)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (standard for when supplemental EIS is required)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing: injury-in-fact and procedural-rights framework)
- Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir.) (agencies may use adaptive management without violating NEPA)