# Sierra Club v. Jewell

> District Court, District of Columbia · March 29, 2016 · 177 F. Supp. 3d 91

URL: https://www.frixlaw.com/law-library/cases/3189562

## Case

- **Full name:** Timothy MAYO, Et Al. Plaintiffs, v. Jonathan B. JARVIS, Et Al., Defendants, State of Wyoming, Safari Club International, Intervenor-Defendants; Sierra Club, Et Al., Plaintiffs, v. Sally Jewell, Et Al., Defendants, State of Wyoming, Safari Club International, Intervenor-Defendants
- **Court:** District Court, District of Columbia
- **Decided:** March 29, 2016
- **Citations:** 177 F. Supp. 3d 91
- **Precedential status:** Published
- **Opinion:** Opinion by Contreras
- **Judges:** Judge Rudolph Contreras
- **Nature of suit:** Civil
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3189562

## How later opinions describe it (automated extraction)

- finding “no authority for [the] proposition that, whenever the FWS reinstates formal consultation, the consultation must result in the production of a new, full-blown BiOp”
- noting that “nothing in the statute or regulation[s] requires the [Service] to rigidly add up each incidental take”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIMOTHY MAYO, et al. :
:
Plaintiffs, : Civil Action No.: 14-1751 (RC)
:
v. : Re Document Nos.: 35, 39, 40, 43
:
JONATHAN B. JARVIS, et al., :
:
Defendants, :
:
STATE OF WYOMING, :
SAFARI CLUB INTERNATIONAL, :
:
Intervenor-Defendants. :
:
SIERRA CLUB, et al. :
:
Plaintiffs, : Civil Action No.: 15-0479 (RC)
:
v. : Re Document Nos.: 26, 28, 30, 33
:
SALLY JEWELL, et al., :
:
Defendants, :
:
STATE OF WYOMING, :
SAFARI CLUB INTERNATIONAL, :
:
Intervenor-Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT; AND GRANTING IN PART AND DENYING IN PART INTERVENOR-DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION

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 concerning the grizzly

2
bear. The plaintiffs in Mayo v. Jarvis claim that the NPS’s and Governor of Wyoming’s

approval of the elk hunt in 2015 violated the National Environmental Policy Act (“NEPA”), the

Grand Teton National Park Enabling Act (“Enabling Act”) and the National Parks Organic Act

(“Organic Act”). They also claim that the FWS acted arbitrarily and capriciously when it

amended its 2007 Biological Opinion. The plaintiffs in Sierra Club v. Jewell similarly claim that

the FWS acted unlawfully and arbitrarily and capriciously in amending the 2007 Biological

Opinion.

Now before the Court are Plaintiffs’ respective motions for summary judgment 1 (Mayo

ECF No. 35, Sierra Club ECF No. 26) and the cross-motions for summary judgment of

Defendants (Mayo ECF No. 39, Sierra Club ECF No. 28), Intervenor-Defendant the State of

Wyoming (Mayo ECF No. 40, Sierra Club ECF No. 30), and Intervenor-Defendant Safari Club

International (Mayo ECF No. 43, Sierra Club ECF No. 33). For the following reasons, the Court

grants summary judgment to Defendants on Plaintiffs’ NEPA, Organic Act, and Enabling Act

claims, but grants summary judgment to Plaintiffs on one of the ESA claims, and will remand the

2013 Addendum to the FWS.

II. FACTUAL BACKGROUND

A. The Jackson Elk Herd, the Elk Reduction Program, and the 2007 Management Plan

The Jackson elk herd is one of the largest concentrations of elk in North America. NPS-

1947. 2 The herd migrates “across several jurisdictional boundaries in northwestern Wyoming”

1
Because the Court is resolving both cases in a single opinion, for clarity the Court will
include the case name, Mayo or Sierra Club, in all citations to the parties’ complaints, briefing,
or the docket in a particular case.
2
The administrative record in these cases includes documents from the National Park
Service (marked with the prefix “NPS-”), the Fish and Wildlife Service (marked with the prefix
“FWS-”), and documents from the Fish and Wildlife Service specific to the grizzly bear (marked

3
encompassing federal lands that are managed by the NPS, the FWS, the United States Forest

Service, the Bureau of Land Management, as well as Wyoming state lands, and private lands. Id.

The elk, along with the Jackson bison herd, significantly contribute to “the ecology of the

southern greater Yellowstone ecosystem” (“GYE”) because of the herd’s “large numbers, wide

distribution, effects on vegetation, and [its] importance to the area’s predators and scavengers.”

NPS-1948.

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 Hole, Wyoming

to serve as a “winter game (elk) reserve.” Defs. of Wildlife v. Salazar, 651 F.3d 112, 113 (D.C.

Cir. 2011); see also Act of Aug. 10, 1912, Pub. L. No. 62-261, 37 Stat. 293 (codified as amended

at 16 U.S.C. § 673). The Refuge has since grown to over 24,700 acres. Defs. of Wildlife, 651

F.3d at 113.

with the prefix “GB-”). To avoid confusion, and because each collection of documents is
independently numbered, the Court’s citations to the administrative record will include the
appropriate prefix.

4
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

5
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 (D.D.C. 1998), the FWS and the NPS 3 prepared a joint management plan for the bison

and elk herds on the Refuge and in the Park, see NPS-1952. The final Bison and Elk

Management Plan was issued in 2007 (“the 2007 Management Plan”). The 2007 Management

Plan analyzed six alternatives for the long-term management of the elk and bison herds and their

habitat over a fifteen-year period. See NPS-1909.

3
The FWS manages the Refuge, as part of the National Wildlife Refuge System, while
the NPS manages the Park. For ease of reference, the Court will simply refer to “the NPS” in
this opinion when discussing the 2007 Management Plan, because Plaintiffs have only
challenged the plan’s discussion of elk hunting in the Park.

6
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 4 in the bison and elk herds and an increased risk of exotic disease outbreak; damage

to and loss of the animals’ natural winter habitat; and low winter morbidity rates of bison and

elk, which has collateral effects on “predators, scavengers, and detritivores,” and which also

“necessitates intensive hunting programs.” Id. Overall, the agencies acknowledged that “[a]ll of

the biological issues identified . . . stem from the winter feeding program on the National Elk

Refuge.” Id.; see also Defs. of Wildlife, 651 F.3d at 113 (explaining that “[i]n recent years, it has

become apparent that” the supplemental feeding program, “though born of benevolence, causes

significant problems”).

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.

4
Brucellosis is a disease with which the Jackson bison and elk herds are “chronically
infected.” NPS-2079. The disease “causes an infected female to abort her first calf, leaving
behind contaminated fetal tissue on the ground capable of transmitting the disease to other
animals.” Defs. of Wildlife, 651 F.3d at 114; see generally NPS-2079–83 (discussing brucellosis
among the Jackson elk herd).

7
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 reliance on free-standing forage.” Id. Notably, however, the agencies did not specify

a particular end date for the supplemental feeding program.

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

8
dispositive to us, as it was to the district court, that the agencies are committed to ending

supplemental feeding.” 5 Id.

Since 2007, and as part of the Management Plan, the National Park Service Regional

Director6 and the Governor of Wyoming have continued to approve an annual elk reduction

program. For example, in 2015 the NPS and Wyoming’s Governor approved the Wyoming

Game and Fish Department’s (“WGFD”) and the Park’s joint recommendation to conduct a hunt

from October 24 through December 13, 2015. See NPS-7543–49. Although the post-hunt herd

population of elk was estimated in February 2015 to be 11,000—at the 2007 Management Plan’s

target—the joint recommendation noted that approximately 8,400 elk wintered on the Refuge

during the 2014–2015 winter and that the elk on feed on the Refuge had been above the 5,000

elk objective for six of the prior seven winters. NPS-7546. In part because of the number of elk

wintering on the Refuge, the joint recommendation concluded that a harvest of elk was

“necessary for the proper management and protection of the elk.” Id.; see NPS-7543 (adopting

that finding). The program called for the issuance of 650 licenses, and a harvest of 300 elk from

5
It is unclear whether this unequivocal commitment was an ex post representation made
to the D.C. Circuit, as it conflicts to some extent with the NPS’s representations made in
response to comments on the Draft Plan at the time it was issued. Therein, the NPS represented
that Alternative 4 “does not specify the number of years that feeding would take place, nor that it
would be eliminated, but it focuses on achieving the desired conditions for sustaining bison and
elk populations over time.” NPS-2587 (emphasis added). Wyoming’s memorandum in this case
similarly refers to the plan’s goal as simply “reducing” supplemental feeding. See Mayo Wyo.’s
Mem. Supp. Cross-Mot. Summ. J. & Resp. to Pls.’ Mots. at 27–28 (“Mayo Wyo.’s Mem.
Supp.”). In other places, however, the Management Plan says that it envisions a “complete
transition to free-standing forage if and when several established criteria are met.” NPS-2011.
In any event, the NPS here does not contest that the 2007 Management Plan calls for ending the
supplemental feeding program entirely so, in line with Defenders of Wildlife, this Court also
proceeds on that assumption.
6
In 1975, the Secretary’s authority to approve the annual elk reduction program was
delegated to the NPS Regional Director. See NPS-326–30.

9
the Park. NPS-7543–44; NPS-7548 (noting a harvest objective of 300 elk in hunt areas 75 and

79).

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 that target. In all but one year, it has been well-north of 7,000 elk. See

NPS-1895 (7,300 elk in 2006–07); NPS-3382 (7,950 elk in 2007–08); NPS-3933 (7,800 elk in

2008–09); NPS-4251 (6,000 elk in 2009–10 7); NPS-4785 (7,700 elk in 2010–11); NPS-5582

(7,700 elk in 2011–12); NPS-6142 (7,500 elk in 2012–13); NPS-6851 (8,300 elk in 2013–14).

Most recently, 8,400 elk wintered on the Refuge during the 2014–15 winter. See NPS-7546.

This figure was reported to be “well above” the five year average of 6,807. 8 NPS-7380.

B. The Grizzly Bear, the 2007 Biological Opinion, and the 2013 Addendum

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-

7
The Court assumes that the reference to the winter of 2010–11 in this document, which
was approved in April 2010 (before the 2010–11 winter commenced), is a typographical error.
8
From the record, it appears that the number of elk wintering on the Refuge may not
correspond exactly to the number of elk receiving supplemental feed. For example, although a
FWS Refuge biologist reported the five-year average of elk on feed to be 6,807, between the
winters of 2009–10 and 2013–14 the joint field recommendations to Wyoming’s Governor and
the NPS’s Regional Director establish an average number of elk wintering on the Refuge of
approximately 7,440. If one substitutes the 2014–15 winter in place of the 2009–10 winter, the
average climbs to 7,920. Similarly, the 2015 joint recommendation indicated that the “number
of elk on feed on the Refuge has been above the objective (5000) for 6 of the past 7 winters.”
NPS-7546 (emphasis added). But, again, during that time period the yearly joint
recommendations indicate that the number of elk wintering on the refuge never fell below 6,000.
Neither party explains these discrepancies.

10
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, --- F. Supp. 3d ----, No. 12-0041, 2015 WL 5138389, at *2 (D.D.C. Aug. 31, 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 that the FWS and the applicable agency reinitiate formal consultation in four situations,

including if “the amount or extent of [the] taking specified in the incidental take statement is

exceeded,” if “new information reveals effects of the action that may affect listed species or

11
critical habitat in a manner or to an extent not previously considered,” or if “the identified action

is subsequently modified in a manner that causes an effect to the listed species or critical habitat

that was not considered in the biological opinion.” 50 C.F.R. § 402.16.

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

12
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 bears” in the GYE, and

“overall sustainable annual mortality levels . . . , the number of bears affected by the Plan will be

small and will not jeopardize the continued existence of the Yellowstone ecosystem grizzly bear

population.” FWS-1663–64. Thus, the FWS anticipated that “up to 4 additional grizzly bears in

the Park and 2 grizzly bears in the Refuge” may be incidentally taken directly or indirectly as a

result of the Plan during the remaining 9 years this biological opinion is valid.” FWS-1664.

13
C. Procedural History

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 9 brings four claims under the Administrative Procedure Act (“APA”) and

the ESA. First, he claims that the NPS violated the Grand Teton National Park Enabling Act by

failing to set forth an adequate basis for believing that the annual elk reduction program is

“necessary for the purpose of proper management and protection of the elk,” as required by 16

U.S.C. § 673(c)a. Id. ¶¶ 68–70. Second, he argues that the NPS similarly failed to make a

finding that the elk reduction program will not impair the Park, and thus violated the Organic

Act, which instructs the NPS to “conserve” natural parks’ wildlife “by such means as will leave

them unimpaired for the enjoyment of future generations.” Id. ¶¶ 71–72. Third, he claims that

the NPS violated NEPA by failing to prepare an Environmental Assessment or Environmental

Impact Statement each year in connection with the elk reduction program. Id. ¶¶ 73–74. And

finally, Mayo contends that the 2013 Addendum to the FWS’s BiOp violated Section 7 of the

9
For ease of reference, the Court will refer to the plaintiffs in Case No. 14-cv-1751
simply as “Mayo” throughout the opinion.

14
ESA. Id. ¶¶ 75–80. Although the complaint was originally founded on the 2014 elk reduction

program, after the Governor of Wyoming and the NPS’s Regional Director approved the 2015

hunt, Mayo filed a supplemental complaint incorporating the 2015 hunt. See generally Mayo

Supp. Compl., ECF No. 32.

In the second case, Sierra Club v. Jewell, Plaintiffs Sierra Club, the Western Watersheds

Project, and the Center for Biological Diversity 10 bring distinct, but in some cases overlapping,

challenges. Sierra Club exclusively challenges the 2013 Addendum to the FWS’s BiOp

concerning the grizzly bear, and asserts four causes of action under the ESA. First, Sierra Club

contends that when FWS made its “no jeopardy” determination the agency failed to consider all

of the additional incidental takings of grizzly bear that the agency already anticipated to take

place in the GYE. Sierra Club Compl. ¶¶ 39–46, ECF No. 1. Second, Sierra Club claims that

the agency’s use of an addendum did not suffice to reinitiate formal consultation as required by

the ESA and its regulations. Id. ¶¶ 47–52. Third, Sierra Club urges that the FWS failed to

consider additional “reasonable and prudent measures” to minimize the impact of the anticipated

incidental take set forth in the addendum. Id. ¶¶ 53–57. Lastly, Sierra Club asserts that the NPS,

too, violated the ESA by relying on the FWS’s invalid addendum when discharging the NPS’s

own duties to comply with the ESA. Id. ¶¶ 58–62.

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.

10
The Court will refer to Plaintiffs in Case No. 15-cv-0479 as “Sierra Club.”

15
III. LEGAL STANDARD

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 (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 (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

16
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, -- F.3d ----, No. 14-5284, 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.”).

IV. ANALYSIS

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.

A. The NEPA Claims

1. Statutory Background

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 (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,

17
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 (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 (2004). The Act is merely “meant to ensure” that an agency

18
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 omitted) (quoting Vt. Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)). While the procedures “are almost certain to

affect the agency’s substantive decision, it is now well settled that NEPA itself does not mandate

particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350. As

a result, “NEPA is ‘not a suitable vehicle’ for airing grievances about the substantive policies

adopted by an agency, as ‘NEPA was not intended to resolve fundamental policy disputes.’”

Grunewald v. Jarvis, 776 F.3d 893, 903 (D.C. Cir. 2015) (quoting Found. on Econ. Trends v.

Lyng, 817 F.2d 882, 886 (D.C. Cir. 1987)). “If the adverse environmental effects of the

proposed action are adequately identified and evaluated, the agency is not constrained by NEPA

from deciding that other values outweigh the environmental costs.” Robertson, 490 U.S. at 350.

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

(citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (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; see also Pub. Citizen,

541 U.S. at 763 (“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

19
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.

2. NEPA Coverage of the Elk Reduction Program

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. 11

Mayo Pls.’ Mem. Supp. Mot. Summ. J. at 22–23 (“Mayo Pls.’ Mem. Supp.”), ECF No. 35; see

also Mayo Compl. ¶ 73; Mayo Supp. Compl. ¶ 8. Mayo argues that the NPS undertakes a major

federal action when it makes “a new discretionary decision every year concerning whether, and

on what specific terms, to authorize the elk hunt in a national park. Mayo Pls.’ Mem. Supp. at

22.

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. 12 Instead, they claim

11
Mayo also points out that the NPS has not invoked a categorical exclusion exempting
the elk reduction program from NEPA review, but the agency does not claim that the elk
reduction program is categorically excluded. The CEQ regulations define a categorical
exclusion as “a category of actions which do not individually or cumulatively have a significant
effect on the human environment and which have been found to have no such effect in
procedures adopted by a Federal agency in implementation of these regulations . . . and for
which, therefore, neither an environmental assessment nor an environmental impact statement is
required.” 40 C.F.R. § 1508.4.
12
Wyoming, as intervenor, does argue that the NPS’s annual authorization of the elk hunt
is not a major federal action but “simply one step in the agency’s ongoing management of the elk
and bison herds pursuant to the 2007 Plan,” the latter of which “is a major federal action.” Mayo

20
that they fulfilled their NEPA obligations when they analyzed the environmental consequences

of the 2007 Management Plan. Defendants argue that when the agency set overall goals for the

management of the Jackson elk herd and analyzed the anticipated environmental consequences

of each proposed alternative, it also took a “hard look” at the particular environmental

consequences of continuing the elk reduction program in the Park as one management tool. See

Mayo Defs.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n to Pls.’ Mot. at 15–18 (“Mayo Defs.’

Mem. Supp.”), ECF No. 39.

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

Wyo. Mem. Supp. at 23 (emphasis in original). One might read Wyoming’s argument as
implying that, in the absence of an overarching plan like the 2007 Management Plan, the annual
elk hunt by itself would not be considered a major federal action. Unlike Wyoming, Defendants
do not seem to claim that, even in the absence of the 2007 Bison and Elk Management Plan, the
annual elk hunt would not constitute a major federal action. Instead, Defendants’ argument is
narrower: they seem to argue that if a proposed action has been made part of a NEPA analysis
that focuses on an entire program, a new EIS is not required for “each future component action.”
Mayo Defs.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n to Pls.’ Mot. at 15–16, ECF No. 39
(“Mayo Defs.’ Mem. Supp.”) (quoting Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1377
(10th Cir. 1980)).

21
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 in harvest in the park and on the southern part of the refuge,” although “[t]he

reduction in herd size would come primarily from the park segment”).

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.

22
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.

23
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 of park visitors, potentially reducing

the quality of the outdoor experience for some people.” NPS-2415. While the NPS noted that

possibility, it concluded that any adverse effects “would be relatively minor because most

visitors from May through October do not see elk,” and because in most years “a moderate to

large number of elk (but fewer than under baseline conditions and Alternative 1) would continue

to be observable during spring and fall migrations, so viewing opportunities might not change

substantially.” Id. And NPS also explained that it did not believe Park visitors would face fewer

opportunities to observe the elk’s unique mating patterns. The NPS predicted that, “although elk

numbers would be lower than Alternative 1, bull-to-cow ratios could be higher, which means that

opportunities for seeing and hearing bugling elk during the fall rut would not decline

proportionally.” Id.

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.

24
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. 13

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

13
The EIS also considered possible effects that would follow from expanding elk hunting
in the National Elk Refuge. For example, the EIS explained that “[c]hanges in hunting practices
would also cause short-duration adverse effects, with the extent dependent on disturbance levels.
Harvesting elk on the southern part of the refuge early in the season would disturb elk in these
traditionally safe areas, increasing agitation and nervousness, energetic expenditures, and
possibly decreasing nutrition because of reductions in foraging.” NPS-2243

25
those effects to be limited. The EIS noted that hunters “walking and horseback riding through

the hunt zones and rifles being fired . . . on the eastern side of the park could disturb wolves,

grizzly bears, and bald eagles in the immediate area of each hunting party for a short period of

time,” but considered those impacts “negligible.” NPS-2305. The EIS further explained that the

grizzly bear’s population expansion “southward” and the continuation of the “elk reduction

program in the park” could increase “the risk of conflicts between hunters and grizzlies.” Id.

But the EIS posited that in the Park, specifically, “the potential risk of deputized elk hunters

killing grizzly bears would be less compared to baseline conditions” because, over the course of

the plan’s implementation “there would be fewer elk in the park and the elk reduction program

would likely be changed as a result.” NPS-2309. In addition, the EIS pointed out that, as of

2007, “no grizzly bears are known to have been killed . . . during the elk reduction program in

Grand Teton National Park,” and therefore concluded that “grizzly bears would likely not be

affected or [would be] affected to a minor degree.” NPS-2305.

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 (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”).

26
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 analyses (such as regional or basinwide

program statements or ultimately site-specific statements).” Id.; see also Nevada v. Dep’t of

Energy, 457 F.3d 78, 91 (D.C. Cir. 2006) (describing tiering).

27
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

28
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 of Columbia in a single,

programmatic document).

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.

29
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. 14 The terms “programmatic” and “site-specific” are certainly useful

guideposts for determining whether the environmental impact of a particular federal action has

been adequately considered in a particular EIS. But the relevant task for the Court always

remains simply determining whether the relevant NEPA document afforded the agency the

opportunity to take the requisite “hard look” at the environmental consequences of the particular

challenged action. Balt. Gas & Elec., 462 U.S. at 97.

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

14
For this reason, Mayo’s repeated invocation of the CEQ’s tiering regulation is
unavailing. To be sure, that regulation speaks generally of tiering being appropriate when an
agency sequences “[f]rom a program, plan, or policy environmental impact statement to a
program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or
analysis.” 40 C.F.R. § 1508.28(a). As a result, an agency may find it prudent, or necessary, in
many circumstances to tier a site-specific analysis to a national or regional plan. Contrary to
Mayo’s claim, however, the regulation does not indicate that a separate site-specific analysis
must invariably be created. Accord Ventling, 479 F. Supp. at 179 (explaining that “[a]lthough a
programmatic EIS may often be inadequate relative to an individual action, there is no reason to
require a site-specific statement that would merely duplicate the programmatic EIS”).

30
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 the preparation of more detailed

environmental assessments” which “would be tiered to this programmatic impact statement.” Id.

at 424 (emphasis in original) (quoting EIS). The court therefore concluded that the 1998 EIS

“did not, and was not intended to, take a hard site-specific, detailed look at hunting” and,

therefore, “[i]n the words of the General Management Plan,” a more detailed assessment was

“needed before the Seashore’s NEPA obligations are satisfied with respect to hunting.” Id. at

432, 434. The 2007 Management Plan here, by contrast, contains nearly the exact opposite

representation—it asserts that the EIS does contain detail “sufficient to allow several

management actions to be carried out without having to complete additional analyses (e.g.,

environmental assessments) prior to implementation.” NPS-2143 (emphasis added). And its

analysis accordingly considered the environmental impacts of the elk hunts in the Park.

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

31
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

32
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 areas in the Park to open

to the hunt, as site-specific decisions, the Court (like the NPS) disagrees. Although these

decisions are made annually, they are made on only one site: the Park. Indeed, with respect to

elk hunting, the 2007 Management Plan encompasses only two “sites”: the Grand Teton National

Park, and the National Elk Refuge. See Mayo Defs.’ Reply at 6, ECF No. 49. In many instances,

the EIS specifically distinguishes among the two sites and describes the unique environmental

effects the NPS anticipates hunting will cause in each location. See, e.g., NPS-2414–15

(considering the wildlife viewing impacts caused by hunting on the Range and Park,

respectively); NPS-2158–60 (same). Thus, the 2007 Management Plan, despite its programmatic

label, also adequately considered the environmental effects of hunting specific to the Park.

Accord Vt. Pub. Interest Research Grp., 247 F. Supp. at 528. And, consequently, the other cases

Mayo cites holding that subsequent, site-specific NEPA analyses were required are also

distinguishable on their facts. In each of those cases, a court was confronted with a far broader

programmatic management plan of nationwide scope, and each court concluded that the plan at

issue had not considered the relevant site-specific environmental effects. See, e.g., Pit River

Tribe v. U.S. Forest Serv., 469 F.3d 768, 783–84 (9th Cir. 2006) (holding that programmatic EIS

considering how to implement the Geothermal Steam Act nationwide, and subsequent, more

geographically-focused EAs which specified that additional EAs would be conducted, both failed

to analyze environmental consequences of gas lease extensions).

33
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.” 15 Id.; see also Powder

River Basin Res. Council v. Bureau of Land Mgmt., 37 F. Supp. 3d 59, 80–83 (D.D.C. 2014).

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.

15
Mayo claims that TRCP favors his argument because the Circuit upheld the use of
adaptive management only after noting that the exact mitigation measures to be used would be
“determined on a site-specific basis.” 616 F.3d at 516. This case differs in two important
respects that make this limitation, even if important, irrelevant here. First, as already explained,
the 2007 Management Plan does contain a site-specific analysis for elk hunting in the Park.
Second, the NPS is using adaptive management in the Park not to tailor the mitigation techniques
it will employ to limit the adverse environmental effects of its action in any one location.
Instead, the agency action, itself, (the environmental consequences of which the EIS analyses) is
being implemented through adaptive management. But so long as the goals of that action and its
anticipated course are described in sufficient detail to forecast the anticipated environmental
effects, an agency should be able to comply with NEPA despite some uncertainty about the exact
contours of the agency action. See Scientists’ Inst., 481 F.2d at 1092 (“It must be remembered
that the basic thrust of an agency’s responsibilit[y] under NEPA is to predict the environmental
effects of proposed action before the action is taken and those effects fully known. Reasonable
forecasting and speculation is thus implicit in NEPA.”).

34
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.” 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. 16 Cf. Minn.

Pub. Interest Research Grp. v. Butz, 498 F.2d 1314, 1323 n.29 (8th Cir. 1974) (en banc)

(suggesting that, on remand, the Forest Service’s impact statement concerning timber cutting in a

wilderness area would not require “a separate impact statement” or “individual EIS” for “each

administrative action taken pursuant to that policy” or for “each timber sale” if “the

environmental effects of timber cutting are considered in the overall EIS, . . . absent a material

change in circumstances or a departure from the policy covered in the overall EIS”).

16
Mayo also asserts that the particular “factual justification for the ‘necessity’ of elk
hunting in any particular year within the multi-year plan” is not discussed by the 2007
Management Plan EIS. Mayo Pls.’ Opp’n & Reply at 12. The Court fails to see how the
particular justification asserted for the hunt in any one year would alter the environmental
consequences flowing from that hunt.

35
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. 17

3. Supplementation

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 (1989). The CEQ regulations

17
This conclusion also obviates the need to consider Safari Club’s alternative statutory
arguments. See Mayo Safari Club’s Mem. Supp. Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. at 8–
14 (“Mayo Safari Club’s Mem. Supp.”), ECF No. 43. In any event, the agency has not embraced
those arguments as grounds for declining to prepare an annual EIS, and therefore they should not
be considered by this Court in an APA case. See, e.g., U.S. Postal Serv. v. NLRB, 969 F.2d
1064, 1069 (D.C. Cir. 1992) (rejecting intervenor’s “endeavor to achieve disposition of this case
on a rationale not set forth by the agency itself” (brackets, internal quotation marks, and citations
omitted)); NRDC v. Herrington, 768 F.2d 1355, 1397 n.40 (D.C. Cir 1985) (noting that because
the court “may sustain the agency’s decision only on the rationale it offered,” it could not
“uphold the agency’s result by adopting the new definition intervenors propose”).

36
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. Only changes “that cause effects

which are significantly different from those already studied require supplementary

consideration.” 18 Davis v. Latschar, 202 F.3d 359, 369 (D.C. Cir. 2000) (internal quotation mark

omitted) (quoting Corridor H Alts., Inc. v. Slater, 982 F. Supp. 24, 30 (D.D.C. 1997)). Like the

decision of whether an EIS is warranted in the first instance, an agency’s decision whether to

supplement an EIS is reviewed under the arbitrary and capricious standard. Marsh, 490 U.S. at

375–77. A reviewing court must review the record and satisfy itself that “the agency has made a

reasoned decision based on its evaluation of the significance—or lack of significance—of the

new information.” Id. at 378. Determining “whether information is either new or significant

‘requires a high level of technical expertise,’” and courts therefore will “‘defer to the informed

decision of the [agency].’” Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm’n, 716

F.3d 183, 197 (D.C. Cir. 2013) (quoting Marsh, 490 U.S. at 377).

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),

18
In Davis, the D.C. Circuit affirmed the district court’s judgment “for the reasons stated
in the [district court’s] 1998 opinion,” noting that the Circuit would adopt the district court’s
opinion “as our own and reprint [it] as an appendix” to the Circuit’s own opinion. 303 F.3d at
360; see also id. at 361–371 (reproducing the entirety of the district court’s decision). This Court
therefore cites to the D.C. Circuit version of the district court opinion and treats it as binding
precedent.

37
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

circuit] ha[s] consistently rejected.” Mayo Defs.’ Mem. Supp. at 27 (quoting Am. Wildlands v.

Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)). But their contention overlooks the two

paragraphs of argument that directly preceded that citation. There, Mayo specifically argued that

the 2007 Management Plan “is not even being carried out according to its plain terms” and is

“not being implemented so as to meet its central management objective” in light of the

significant increase in the number of elk wintering on the National Elk Refuge. Mayo Pls.’

Mem. Supp. at 33–34. In addition, Mayo’s brief had previously laid out a number of

circumstances that, he claimed, “cry out for some agency consideration and public involvement.”

Id. at 25–30. While these arguments are not necessarily the focus of Mayo’s opening

memorandum, they are sufficiently developed to merit consideration. 19

Proceeding to the merits, the Court finds the putative new circumstances or information

Mayo proffers unavailing. Where possible, 20 the Court is guided in its analysis by the NPS’s

19
Notably, Defendants have not argued that Mayo is time-barred from asserting a
supplemental NEPA claim.
20
In May 2012, the Sierra Club submitted a letter to the Park’s Superintendent,
requesting that the Park “undertake a formal Environmental Analysis of the ongoing Grand
Teton National Park . . . elk hunt,” and identifying several putative changes in conditions “over
the last several years,” including the increase in the grizzly bear population in the hunt area as
well as an increase in the gray wolf population, that “warrant a comprehensive analysis at this
time.” NPS-5585. The Superintendent responded in June 2012, addressing each point and
concluding that, through the analysis contained in 2007 Management Plan and other, more
recent, wildlife surveys and consultations among agencies, “each of the concerns itemized in
[the] letter are being or have been addressed.” NPS-5592–93. Overall, the Superintendent
responded that “no additional analyses are necessary at this time.” NPS-5593. Through his
counsel, Mayo submitted a similar letter in August 2014, shortly before filing this lawsuit,
contending that NPS “has approved changes in the hunt” since 2007 “which have environmental
implications that have never been analyzed in any NEPA document,” and that “new issues have

38
June 2012 response to a letter, submitted by the Sierra Club, urging NPS to “undertake a formal

Environmental Analysis” because “conditions have changed substantiality in the Park over the

last several years.” See NPS-5585. NPS’s response set forth the agency’s explanation of why

certain conditions did not constitute changed circumstances, to which this court should generally

defer. See NPS-5589–93; see also Blue Ridge Envtl. Def. League, 716 F.3d at 197.

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 that there

was a potential for grizzly bears to expand as far south as the Elk Refuge, FWS-1682, and that

grizzly bears within the Park “have increased in numbers and expanded in range,” FWS-1690.

Accordingly, the NPS explained in its June 2012 letter that this activity “is not new” and was

addressed in the 2007 Management Plan. NPS-5590.

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

emerged that have never been analyzed in any NEPA document.” NPS-7553. NPS did not
respond to the letter before Mayo filed this lawsuit two months later, and the record does not
reveal whether NPS ever responded.

39
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. 21

21
Mayo also relies on several documents in the administrative record that reference the
“conflict” between elk management and grizzly bear conservation or stating that recent events
have “highlighted” the effects of the elk reduction program on grizzly bears. See Mayo Pls.’
Mem. Supp. at 26 n.8; Mayo Pls.’ Opp’n & Reply at 25–27. But Defendants do not deny that
there are inevitable trade-offs in their management practices, or that the elk reduction program
will have some effect on grizzly bears. Indeed, the 2007 Management Plan and the FWS’s BiOp
indicate as much. Although recent events may have brought these conflicts to the fore, the
relevant question for Mayo’s supplemental NEPA claim is whether present circumstances
indicate that the effect on the grizzly bear is now different in kind, warranting a supplemental
analysis. For the reasons stated above, the Court concludes that NPS’s decision not to conduct a
supplemental analysis is not arbitrary and capricious.

40
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 fall.”). As a result, the agency did not act arbitrarily or capriciously in

concluding that an EA or supplemental EIS was not warranted.

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

41
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; Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, -- F.3d ----,

No. 14-5284, 2016 WL 790900, at *11 (D.C. Cir. Mar. 1, 2016) (“Because predicting the future

42
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 years.” NPS-7246. Mayo homes in on the phrase “major changes,” in an effort to characterize

the agency’s changes as significant. See Mayo Pls.’ Mem. Supp. at 30; Mayo Pls.’ Opp’n &

Reply at 28–29. There are several flaws in this argument. For one thing, the biologist was asked

to provide a “bullet summary list of changes” that were made to the hunt “during the last two

years.” NPS-7246. The biologist’s use of the qualifier “major” in her reply, when read in

context, reads most readily as “noteworthy,” rather than “momentous” or “substantial.” NPS-

7246. For another, even taking “major” to mean “significant,” this single phrase in an agency

staff member’s e-mail does not bind the agency, which clearly does not view the changes as

significant. See Defs. of Wildlife, 2016 WL 790900, at *9 (noting that “comments by a random

Service employee . . . at best indicate a lack of consensus within the Service; they do not bind the

Service”). And, finally, to the extent that Mayo characterizes these changes as having been made

“in light of environmental impacts,” Mayo Pls.’ Opp’n & Reply at 29, the record simply does not

support that characterization. A review of the listed changes in fact reveals quite modest

alterations to the hunt—limiting the possession of ammunition or shots to be fired by hunters,

requiring the use of non-lead ammunition, closures to certain areas of the Park to hunting to

“decrease the probability of grizzly-bear human conflicts,” alterations to other areas to “spread

out early hunting pressure,” and changes to the hunt’s “season structure.” NPS-7247. While

some changes may have been made with an eye toward limiting the environmental consequences

43
of the hunt, see id. (noting that in 2013 the NPS required the use of “non-lead ammunition, to

reduce lead contamination of gut piles that are fed on by eagles and other scavengers”), the

record indicates that the bulk were made in an effort to meet the 2007 Management Plan’s bull-

to-cow ratio and winter refuge population targets, compare id. (noting changes to certain hunting

areas and the time period for the hunt), with, e.g., NPS-6142 (explaining that the 2013 proposed

harvest quota and hunt areas “focus on resident and migrating elk that winter on or adjacent to

the National Elk Refuge”), NPS-6851 (same for the 2014 proposed hunt), NPS-7457 (same for

the 2015 approved hunt), and id. (approving a “more liberal harvest on the southern segments

and less hunting pressure on the northern migratory segment” of the Park to target elk that have

been shown to reproduce at a higher rate).22

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)).

Mayo points out that the number of elk on supplemental feed on the Refuge has grown

significantly since the 2007 Management Plan was adopted. Thus, Mayo contends that the plan

22
Mayo also references a newspaper article—discussing this very lawsuit—in which
Grand Teton Senior Wildlife Biologist Steve Cain is quoted as stating that NPS has made “a
significant change” to the elk hunt in past years. See Mayo Pls.’ Mem. Supp. at 30; see also
NPS-7288. Yet again, Mayo’s quotation is selective. The full context explains that Mr. Cain
was referencing the park’s closure of an entire hunt area—Area 79—from hunting. See NPS-
7288. For the same reasons elucidated above, this alteration to the hunt does not constitute a
significant change warranting a supplemental EIS.

44
is “by Defendants’ own omission, not being implemented in a manner designed to meet the

Plan’s stated objective of reducing the number of elk dependent on artificial feed and thereby

facilitating a more natural ecological regime.” Mayo Pls.’ Opp’n & Reply at 22. The record

confirms Mayo’s factual contention that the number of elk wintering on the Refuge has grown

significantly. See, e.g., NPS-6851 (8,300 elk on the Refuge during the 2013–14 winter); See

NPS-7546 (8,400 elk on the Refuge during the 2014–15 winter). In the most recent year, the

winter Refuge population exceeded both the number of elk that had wintered on the Refuge in

the winter before the 2007 Management Plan was even implemented, see NPS-2073 (6,800

wintered in 2005–06), and the population the NPS anticipated would winter there had the agency

never even implemented the plan, see NPS-1909 (forecasting up to 7,500 elk wintering in the

Refuge if the “no action” alternative was selected).

While these circumstances could possibly supply fodder for a supplemental NEPA claim

for other parts of the 2007 Management Plan, 23 they do not undermine the agency’s analysis of

the environmental effects of elk hunting in the Park, specifically. As Defendants note, “the fact

23
Then again, maybe not. According to the 2007 Management Plan, the ability to move
elk off supplemental feed depended on restoring portions of the elk’s native winter habitat. See,
e.g., NPS-1920. While the consistency and extent to which the elk population on the Refuge has
exceeded the 5,000 target since 2007 is unsettling, Defendants claim that the administrative
record before this court, compiled with reference to Mayo’s challenge to the elk hunt, “contains
limited information addressing how the agencies are implementing the various habitat
development and feeding program objectives outlined in the Management Plan.” Mayo Defs.’
Mem. Supp. at 25. The 2007 Management Plan, itself, indicated that elk populations on the
Refuge in any one year had fluctuated considerably (from 3,300 to 11,000) between 1991 and
2006. See NPS-2073. And the record contains some suggestions that fluctuations are not
unexplainable or necessarily persisting. See NPS-7454 (e-mail from Refuge biologist stating that
the cause “of the increasing proportion of the Jackson Elk Herd using NER feedgrounds over
time is unclear” but positing that “[p]ossible factors include annual changes in snow
accumulation, forage production, and wolf abundance from 2000 to 2015”). This Court takes no
position on the merits of a supplemental NEPA challenge regarding activities on the Refuge, but
merely notes that the record is not entirely clear-cut.

45
that one of the Plan’s objectives has not yet been achieved is no proof that the Plan is not being

implemented.” Mayo Defs.’ Opp’n & Reply at 10. And the administrative record contains no

indication that the fact that a larger herd segment is wintering on the Refuge has had a spillover

effect on the environmental impacts of elk hunting in the Park. Elsewhere in their memorandum

Defendants point out that the number of permits issued to hunters has dropped to below the

number proposed in the 2007 Management Plan. See Mayo Defs.’ Mem. Supp. at 7–8; NPS-

2035 (proposing to lower the average number of hunters from 2,484 to 773–957). And the

annual joint elk hunt recommendations demonstrate that the number of elk allowed to be

harvested each year in the Park has fallen from 600 elk to 300 elk. Compare, e.g., NPS-1895

(approving the harvest of 600 elk in hunt areas 75 and 79 in 2007), NPS-3382 (same for 2008)

with NPS-6142 (approving the harvest of only 300 elk in those areas for 2013), NPS-6851 (same

for 2014), NPS-7548 (same for 2015). This roughly corresponds to the 2007 Management Plan’s

expectation that in the “long term an estimated average of 232–287 elk per year would be

harvested.” NPS-2424.

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. 24 See NPS-7553; see also Davis, 202 F.3d at 370 (noting that plaintiffs “never

24
Defendants do not claim that Mayo failed to exhaust this supplemental NEPA claim.
Without addressing the merits of any such argument, the Court notes that an exhaustion
argument may have been available to Defendants. Cf. Davis, 202 F.3d at 370 (noting that
“plaintiffs should have made a request to the Park Service and allowed it to make a decision”);
Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 849 (9th Cir. 2013) (concluding that

46
requested a supplemental EIS or argued that one was required until they raised the issue in this

Court” and explaining that, because the “decision whether a supplemental EIS is required should

be made initially by the agency, not by a reviewing court, plaintiffs should have made a request

to the Park Service and allowed it to make a decision”). In similar circumstances, courts in this

circuit have nevertheless proceeded to consider the supplemental NEPA question on the merits

where they have concluded that the purportedly “new information” is, in the court’s view, of

“questionable value” or otherwise flunks the deferential “reasonableness standard.” Friends of

the River v. FERC, 720 F.2d 93, 109 (D.C. Cir. 1983) (noting that “[t]he record does not indicate

that [plaintiff] ever presented a request to the Commission asking for supplementation of the

EIS,” but explaining that the court would “not consider the effect of FOR’s apparent failure to

approach the Commission first, however, since we reject [plaintiff’s] request on its merits”); see

also Davis, 202 F.3d at 370 (same); Pub. Emps. for Envtl. Responsibility v. U.S. Dep’t of

Interior, 832 F. Supp. 2d 5, 31 (D.D.C. 2011) (citing Friends of the River and refusing to remand

where it would “conflict with the governing ‘reasonableness standard’” and “would require the

agency to conduct an identical analysis on this question when it is clear that it has already looked

closely at the environmental consequences of this decision”).

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

plaintiff exhausted its claim that “the Forest Service violated NEPA by not preparing a
supplemental EIS” when the plaintiff submitted a letter to the agency which allowed it “to give
the issue meaningful consideration” (internal quotation marks and citation omitted)).

47
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 prepare a

supplemental NEPA analysis regarding the elk reduction program, notwithstanding the growing

winter elk population on the Refuge. 25

* * *

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.

25
Although outside the scope of this action, the Court notes that the most recent NPS
briefing statement states the following: “The NER [National Elk Refuge] and GRTE [Grand
Teton National Park] anticipate resistance from WGFD to include in the AMP [Adaptive
Management Plan] a process and desire to phase out feeding on the NER.” NPS-7535. This
sentiment, of course, does not necessarily indicate what will come to pass. But the Court
reminds Defendants that the D.C. Circuit previously stated quite clearly that: “We take the
Secretary at his word that Wyoming has no veto over the Secretary’s duty to end a practice that
is concededly at odds with the long-term health of the elk and bison in the Refuge.” Defs. of
Wildlife, 651 F.3d at 118.

48
B. The Enabling Act 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. 26 Mayo

Compl. ¶¶ 68–70; see also Mayo Pls.’ Mem. Supp. at 39–40.

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 for the 2015 Elk Reduction Program.” Id.

That document explained that the proposed hunting program “has the long-range objectives of

26
Mayo argues that the 2015 hunt decision, “as with the agency’s past decisions” is
arbitrary and capricious. Mayo Pls.’ Mem. Supp. at 40. Yet, Defendants claim that any
challenges to the past hunt decisions are now moot because those hunts have been completed.
See Mayo Defs.’ Mem. Supp. at 15. Mayo does not responded to this contention, so the Court
treats it as conceded. In addition, while the parties were in the process of briefing these cross-
motions, the 2015 elk hunt came and went. Defendants have not argued, however, that the 2015
elk hunt decision is now mooted. Thus, the Court will consider the statutory challenges to the
2015 decision, noting that these issues are “capable of repetition, yet evading review.” See Defs.
of Wildlife, Inc. v. Endangered Species Sci. Auth., 659 F.2d 168, 175 (D.C. Cir. 1981)
(concluding that a challenge to bobcat export limits for the 1979–1980 season was not moot,
even after the season concluded, because the annual orders are “capable of repetition, yet
evading review”).

49
reducing the need to harvest elk within GTNP, continuing progress toward restoring historical

distributions and migration patterns, and encouraging elk to use historic fall and winter range

areas in the southern half of GTNP.” NPS-7546. The recommendation notes that the 2007

Management Plan endeavored to manage the elk herd toward the goal of establishing an overall

population of 11,000, a winter elk population on the Refuge of 5,000, and a bull-to-cow ratio

“more reflective of non-hunted populations.” Id. And the report went on to detail that 8,400 elk

had wintered on the Refuge in the prior winter (above the 5,000 elk objective), that the summer

bull-to-cow ratio was 23-to-100 (below the recommended 35-to-100 ratio), and that the elk herd

population was at 11,000 (within the state’s objective for the herd). NPS-7546–47.

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 (quoting

Burlington Truck Lines, 371 U.S. at 168).

Mayo claims that because the Governor and Superintended 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

50
winter Refuge population and the bull-to-cow ratio—drove its decision. 27 Id.; see Tenneco Gas

v. FERC, 969 F.2d 1187, 1196 (D.C. Cir. 1992) (“Where an agency has considered the relevant

data and articulated a satisfactory explanation for the policy choice made, its choice will be

upheld.”). The agency adequately explained why it considered a reduction program in 2015

“necessary for the proper management and protection of the elk,” and therefore it was not

arbitrary and capricious.

27
This reality obviates any need for the Court to consider or definitively resolve whether
NPS’s reliance on Wyoming’s 11,000 elk herd population objective would be arbitrary and
capricious. This issue raises potentially difficult statutory, scientific, and federalism questions
that the parties address only perfunctorily in their briefing. The statute specifically instructs the
NPS and WGFC to “jointly” conduct field studies and investigations in order to recommend a
program to ensure the conservation of the elk in the Park. 16 U.S.C. § 673c. The NPS invokes
this language and makes a passing, but somewhat undeveloped Chevron argument that appears to
claim that the agency’s reliance on Wyoming’s herd objective is reasonable and “gave
consideration to Wyoming’s interests, as the Enabling Act contemplates.” Mayo Defs.’ Mem.
Supp. at 38, 40 n.23. Mayo claims that this objective has no scientific foundation and, in any
event, that the NPS has a duty to verify that the objective will further proper management and
protection of the elk. Mayo Pls.’ Mem. Supp. at 42. None of the parties have pointed to a
compelling explanation in the administrative record in this case for the 11,000 objective. For its
part, Wyoming’s cross-motion for summary judgment sheds no light on the basis for the
population objective. See Mayo Wyo.’s Mem. Supp. at 30–32. Defendants cite to a 1989 book
in the record discussing the Jackson Elk herd—a book which was written neither by the NPS nor
WGFD—as providing an explanation of “how Wyoming derives its herd objective.” Mayo
Defs.’ Reply at 23 (citing NPS-921, at 181–85). But, so far as the Court can tell, the cited pages
do no more than state that “[d]etermining a desirable size for the elk herd . . . requires that a
number of interests be compromised,” and state that Wyoming has set an 11,000 objective.
NPS-921, at 181, 182. There is no explanation of the scientific basis for that objective.
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.

51
C. The Organic Act Claim

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). 28 Mayo argues that NPS’s

Management Policies require the agency to make an explicit “non-impairment” finding when it

takes any action that may impair park resources, and he claims that “the record reflects no such

determination being made for the 2015 hunt,” or any of the previous years. Mayo Pls.’ Mem.

Supp. at 44; see also Compl. ¶¶ 71–72.

Putting aside the parties’ arguments about whether the agency is required to issue a non-

impairment decision in writing, 29 it is clear that the NPS made an explicit, written non-

28
The Organic Act was previously codified in Title 16, but was recently recodified, along
with other provisions relating to the NPS, in Title 54. See generally National Park Service and
Related Programs Act of 2014, Pub. L. No. 113-287, 128 Stat. 3094.
29
The NPS’s Management Policies provide that “[b]efore approving a proposed action
that could lead to an impairment of park resources and values, an NPS decisionmaker must
consider the impacts of the proposed action and determine, in writing, that the activity will not
lead to an impairment of park resources and values.” See Mayo Pls.’ Mot. Summ. J. Ex. C at 7,
ECF No. 35-3 (reproducing § 1.4.7 of NPS’s Management Policies). The Management Policies
are non-binding and not judicially enforceable. See The Wilderness Soc’y v. Norton, 434 F.3d
584, 596 (D.C. Cir. 2006) (“[T]he conclusion is inescapable that the Management Policies [are] a
nonbinding, internal agency manual intended to guide and inform Park Service managers and
staff” and “[t]here is no indication that the agency meant for these internal directives to be
judicially enforceable.”). Courts in this district have said, however, that, “like any other
agency,” when implementing the Organic Act, the NPS 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.’” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 100 (D.D.C.
2006) (quoting PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198 (D.C. Cir. 2005)).
Here, the 2007 Management Plan provides such a justification, so the Court need not determine
the relevance of NPS’s Management Policies, if any, in setting forth the form in which an agency
must make a non-impairment finding.

52
impairment finding here. The 2007 Management Plan’s Record of Decision states unequivocally

that the plan’s “preferred alternative will not impair resources within Grand Teton National Park

. . . and will not violate the National Park Service Organic Act.” NPS-3078. While Mayo refers

to the statement as “conclusory”—and, viewed only in isolation, it is—a court “will uphold a

decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman

Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). The NPS’s conclusion in

its Record of Decision was meant to encapsulate the agency’s lengthy analysis of the 2007

Management Plan. And, throughout that analysis, the NPS explicitly explained why it did not

believe elk hunting in the Park would impair the Park’s resources. See, e.g., NPS-2160

(acknowledging that “[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,” but concluding 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” and that

Alternative 4, overall, “would not result in the impairment of visual resources in the park”);

NPS-2250 (“Barring the introduction of serious non-endemic disease, Alternative 4 would not

impair the elk population in the park”); NPS-2310 (“This alternative would not result in the

impairment of wolves, grizzly bears, or bald eagles in the park.”). Moreover, the Enabling Act

specifically provides for hunting in the park. See Fund for Animals v. Mainella, 294 F. Supp. 2d

46, 55 (D.D.C. 2003) (“The Court defers to the agency’s view that permitting hunting to occur in

the Recreation Area does not violate the Organic Act, as it is an activity clearly permitted by the

Enabling Act.”).

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

53
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.

D. The Endangered Species Act Claims

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.

1. Statutory Background

The ESA “seeks to protect species of animals against threats to their continuing existence

caused by man,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 558 (1992), and is considered “the

most comprehensive legislation for the preservation of endangered species ever enacted by any

nation,” Tenn. Valley Auth. v. Hill, 437 U.S. 152, 180 (1978). A species may be listed under the

Act as either “endangered” or “threatened.” 16 U.S.C. § 1533. A species listed as “threatened,”

like the grizzly bear, is “any species which is likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). The FWS

54
and the National Marine Fisheries Service (“NMFS”) jointly administer the ESA, although

because the FWS administers the Act with respect to those species under the Secretary of

Interior’s jurisdiction, the FWS is the relevant agency for purposes of this case. See Nat’l Ass’n

of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007).

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.” 30 16 U.S.C. § 1536(a)(2). After an

agency formally consults with the FWS, the service issues what is called a “biological opinion”

(or “BiOp”) which sets forth whether the service believes that “the action, taken together with

cumulative effects, is likely to jeopardize the continued existence of listed species or result in the

destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4). In the course

of formulating its BiOp, the FWS must “use the best scientific and commercial data available.”

16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(g)(8).

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, --- F. Supp. 3d ----,

2015 WL 5138389, at *2 (D.D.C. Aug. 31, 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

30
The ESA also requires agencies to ensure that their actions are

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3189562. Public record. Not legal advice.