Fund for Animals v. Babbitt
| Citation | 89 F.3d 128 |
| Decision Date | 17 July 1996 |
| Docket Number | Nos. 957,D,s. 957 |
| Parties | 27 Envtl. L. Rep. 20,196 The FUND FOR ANIMALS, Green Mountain Animal Defenders, Inc., Sherry Pyden, Bert Dodson and Bonnie Dodson, Plaintiffs-Appellants, v. Bruce BABBITT, Secretary of U.S. Department of Interior, Mollie Beattie, Director, U.S. Fish and Wildlife Service, Allen Elser, Commissioner, Vermont Department of Fish and Wildlife, Defendants-Appellees. ocket 95-6167. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Eric R. Glitzenstein, Washington, D.C. (Kimberley K. Walley, Meyer & Glitzenstein, Washington, D.C., of counsel), for Plaintiffs-Appellants.
Helen M. Toor, Assistant United States Attorney, Chief, Civil Division, Burlington, VT (Charles R. Tetzlaff, United States Attorney, District of Vermont, Burlington, VT, of counsel), for Defendants-Appellees Bruce Babbitt and Mollie Beattie.
John H. Hasen, Assistant Attorney General, Montpelier, VT (Jeffrey L. Amestoy, Attorney General of the State of Vermont, Montpelier, VT, of counsel), for Defendant-Appellee Allen Elser.
Before: JACOBS, LEVAL and PARKER, Circuit Judges.
In 1992, as part of a Moose Management Program, the State of Vermont decided to hold its first moose hunt since 1896. Vermont obtained funding from the federal Fish and Wildlife Service for a "Moose Investigation Project" in 1993. Among other things, this project included preparation for the hunt. Plaintiffs, the Fund for Animals, Green Mountain Animal Defenders, Inc., Sherry Pyden, Bert Dodson, and Bonnie Dodson brought suit challenging the federal government's failure to evaluate the environmental consequences of the Moose Investigation Project before providing funding. The United States District Court for the District of Vermont (Franklin S. Billings, Judge ) granted defendants' motion for summary judgment on the ground that the case had become moot when the federal government limited its funding to certain narrow portions of the project. Plaintiffs appeal from this judgment.
We reverse, and remand the case to the district court for further proceedings. The federal government did not discontinue funding on all portions of the Moose Investigation Project that plaintiffs contend trigger the NEPA review requirement. As a result, the government's limiting action did not moot plaintiffs' case.
To understand the facts of this case, one must be familiar with the framework of several federal environmental statutes, and with the history of the moose hunt in Vermont.
Under the Federal Aid in Wildlife Restoration Act, 16 U.S.C. §§ 669-669i ("WRA"), the federal government provides funding to states for, inter alia, "research into problems of wildlife management as may be necessary to efficient administration affecting wildlife resources." 16 U.S.C. § 669a. The Department of the Interior ("DOI"), acting through the United States Fish and Wildlife Service ("FWS"), allocates WRA funds. See 16 U.S.C. § 669. To obtain project funding under the Act, a state must submit an Application for Federal Assistance which includes an application form, a grant proposal, and a "Program Narrative." The Program Narrative is a 5-year detailed plan explaining the work to be performed and the estimated costs. See generally 16 U.S.C. § 669e. If funding is approved, the state first spends its own money on the project, and then submits invoices to receive reimbursement from the federal government. 16 U.S.C. § 669b.
A state must fulfill an additional requirement in order to receive WRA funds--it must submit evidence that the proposed project complies with all applicable federal laws, including the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"). NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1. Its purpose is to "help public officials make decisions that are based on [an] understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." Id. at 1500.1(c). Under NEPA, federal agencies must prepare an Environmental Impact Statement ("EIS") assessing the beneficial and adverse environmental impacts of any proposed major federal action that significantly affects the quality of the human environment. See 42 U.S.C. § 4332(2)(C). NEPA is implemented by the Council on Environmental Quality ("CEQ"), which has promulgated regulations governing agencies' compliance with the statute. See 42 U.S.C. §§ 4341-4347.
According to CEQ regulations, federal agencies often must prepare an Environmental Assessment ("EA") when determining whether a project is one that will significantly affect the environment and require an EIS. 40 C.F.R. §§ 1501.4 & 1508.9. If, after preparing an EA, the agency decides that an EIS is not needed, it must also prepare a Finding of No Significant Impact ("FONSI") which explains why the action "will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared." 40 C.F.R. § 1508.13. However, an agency is not required to prepare an EIS or an EA for "categorical exclusions," categories of actions that an agency has predetermined will have no significant environmental impact. The CEQ has authorized the use of categorical exclusions to promote efficiency in the NEPA review process. See 40 C.F.R. 1508.4. FWS and DOI have issued regulations applying categorical exclusions to such matters as non-destructive data collection, inventory study, research, monitoring, public safety, and education. See Department of the Interior Departmental Manual, 516 DM 2, App. 1 (1984) & 516 DM 6 App. 1 (1982). Categorical exclusions may never be invoked if the action at issue may "[h]ave highly controversial environmental effects", "[h]ave highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks," or are "directly related to other actions, with individually insignificant but cumulatively significant environmental effects." 516 DM 2 at App. 2.
Moose hunting was first banned in Vermont in 1896, after a combination of hunting and loss of habitat almost wiped out the once plentiful moose population. In December 1992, scientists estimated that there were about 1500 moose in Vermont. Vermont Fish & Wildlife Dep't Program Narrative (June 15, 1993).
The State of Vermont published a "Moose Management Plan" in 1992 after conducting a study on the state's moose population. The study concluded that the Vermont moose population could sustain an annual hunt in Essex County. The plan sought to "monitor moose population levels" by instituting a study of the number of moose and the health of moose in Vermont, and to "minimize negative interactions between humans and moose," by, among other things, educating Vermont drivers to avoid moose collisions.
On June 21, 1993, the state submitted an application to the FWS seeking federal funding under the Wildlife Restoration Act to assist with the state's "Moose Investigations Project." The project included six jobs related to the study and hunting of moose in Vermont, to be conducted over five years. The jobs were as follows:
1) Administration of a Legal Moose Harvest
2) Collection, Tabulation and Analysis of the Legal Moose Harvest
3) Collection, Tabulation, and Analysis of Moose Mortality from Causes other than Legal Hunting
4) Collection, Tabulation and Analysis of Moose Sighting Reports
5) Moose Population Monitoring
6) Moose/Human Conflicts
Job number one, Administration of the Legal Moose Harvest, is the focus of plaintiffs' lawsuit. Job number one's description in the Program Narrative described five elements of the administration of the legal moose hunt:
1) Conduct periodic public information-gathering meetings ... to measure public desires and compatibility of current moose density.
2) Using population modeling techniques outlined in Job 5, prepare any recommended harvest regulation necessary to provide benefits and moose densities, within prescribed limits, desired by local publics.
3) Prepare and distribute moose hunting application forms and associated materials.
4) Process applications received, conduct random lottery drawing of permittees, and notify successful applicants.
5) Develop a mandatory hunter training workshop and conduct two such pre-hunt workshops annually, one in August for residents and one in October for replacements and non-residents.
Along with the Application for Federal Assistance, the Vermont Department of Fish and Wildlife (DFW) submitted a form stating that the entire Moose Investigation Project was categorically exempted from NEPA review. On August 23, 1993, the FWS issued a two-sentence form, signed by John Organ, Northeast Wildlife Program Chief for Federal Aid at FWS, concurring with DFW's categorical exclusion claim. Neither form provided any support for the position that the program was categorically excluded from NEPA, or mentioned which categorical exclusion was being invoked.
Vermont's first moose hunt conducted under the Moose Investigation Project took place from October 19-21, 1993.
The FWS formally approved Vermont's Application for Federal Assistance for the project in February 1994, four months after the first moose hunt had taken place. Consistent with its funding procedure under the WRA, FWS reimbursed Vermont for 75% of the costs that the state had incurred while administering the project. See 16 U.S.C. § 669e(a)(1). These funds were applied to all elements of the project, including all five elements of the "Administration of the Legal Moose Harvest" described above.
According to his affidavit, Organ realized sometime in 1994 that two of the five elements of the moose harvesting project had been erroneously approved. According to his interpretation of FWS policy, activities directly related to the issuance of hunting licenses and permits, such...
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