Defenders of Wildlife v. Everson, No. 18-8061

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: HOLMES, Circuit Judge.
• Citation: 984 F.3d 918
• Parties: DEFENDERS OF WILDLIFE; Wyoming Wildlife Advocates, Plaintiffs - Appellants, v. Margaret EVERSON, Director, National Park Service; Michael T. Reynolds,* Director, National Park Service Intermountain Region; United States Department of Interior; David L. Bernhardt,* in his official capacity as Secretary of the Department of the Interior, Defendants - Appellees, and State of Wyoming, Intervenor Defendant - Appellee. National Parks Conservation Association; Greater Yellowstone Coalition, Plaintiffs - Appellants, v. United States Department of Interior; National Park Service, Defendants - Appellees, and State of Wyoming, Intervenor Defendant - Appellee.
• Docket Number: No. 18-8061, No. 18-8062
• Decision Date: 30 December 2020

984 F.3d 918

DEFENDERS OF WILDLIFE; Wyoming Wildlife Advocates, Plaintiffs - Appellants,
v.
Margaret EVERSON,^* Director, National Park Service; Michael T. Reynolds,* Director, National Park Service Intermountain Region; United States Department of Interior; David L. Bernhardt,* in his official capacity as Secretary of the Department of the Interior, Defendants - Appellees,
and
State of Wyoming, Intervenor Defendant - Appellee.

National Parks Conservation Association; Greater Yellowstone Coalition, Plaintiffs - Appellants,
v.
United States Department of Interior; National Park Service, Defendants - Appellees,
and
State of Wyoming, Intervenor Defendant - Appellee.

No. 18-8061
No. 18-8062

United States Court of Appeals, Tenth Circuit.

FILED December 30, 2020

Timothy J. Preso, (Katherine K. O'Brien, Earthjustice, Bozeman, Montana with him on the briefs) for Defenders of Wildlife and Wyoming, Wildlife Advocates, Plaintiffs-Appellants.

Robert D. Rosenbaum, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for National Parks Conservation Association, Greater Yellowstone Coalition, the Plaintiffs-Appellants.

Kevin W. McArdle, Environment and Natural Resources Division, Washington, D.C., (Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy

Assistant Attorney General, Ellen J. Durkee, Judith E. Coleman, Environment and Natural Resources Division, Washington, D.C., and Tyson Powell, of Counsel, Office of the Regional Solicitor U.S. Department of the Interior, Lakewood, Colorado with him on the brief) for Federal Defendants-Appellees.

Erik E. Petersen, Senior Assistant Attorney General of Wyoming, (James Kaste, Deputy Attorney General, with him on the brief) Office of Attorney General, Cheyenne, Wyoming, for the State of Wyoming, Intervenor Defendant-Appellee.

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

Grand Teton National Park (the "Park") is an iconic landscape of the American West, renowned for its regal mountains and picturesque vistas. Situated in northwestern Wyoming, it encompasses a sprawling 310,000 acres of land, over ninety-nine percent of which is owned by the federal government. The remaining roughly one percent of that land is owned by either the State of Wyoming or private parties.

984 F.3d 923

At the heart of this case is governmental jurisdiction over that one percent of state- and privately owned land within the Park's exterior boundaries—what are collectively called "inholdings." In these two consolidated appeals, we must resolve administrative challenges to two actions taken by Defendant-Appellee National Park Service ("NPS")¹ regarding the management of wildlife on the Park's inholdings.

The first agency action at issue is challenged by all of the above-captioned appellants: Defenders of Wildlife and Wyoming Wildlife Advocates (collectively, "Defenders") in Case No. 18-8061, and the National Parks Conservation Association and the Greater Yellowstone Coalition (collectively, the "Conservation Association," and together with Defenders, the "Appellants") in Case No. 18-8062. Specifically, the Appellants challenge NPS's 2014 determination that 36 C.F.R. § 2.2 —a wildlife regulation that, by and large, prohibits hunting in national parks—does not apply to the Park's inholdings, based on what NPS had concluded was its lack of jurisdiction over wildlife management on those lands. The Appellants contend that NPS does possess such jurisdiction, and that its determination otherwise was contrary to law and arbitrary and capricious under the Administrative Procedure Act (the "APA").

The second agency action is challenged only by the Conservation Association. It concerns the Joint Elk Reduction Program (the "Elk Reduction Program")—a plan under the joint auspices of NPS and the State of Wyoming aimed at controlling the Park's elk-herd population. Specifically, the Conservation Association challenges NPS's approval in 2015 of a change to the program's boundary that removed a certain privately owned tract of land, viz. , an inholding, from the program. NPS's approval of this change was based on its determination that it did not have jurisdiction over the inholding. The Conservation Association contests NPS's decision as contrary to law and arbitrary and capricious under the APA.

The district court rejected both challenges to the two NPS actions. It found, as an initial matter, that the Appellants possessed standing to challenge both actions. Ultimately, however, it held that they had failed to show that either of the contested actions was contrary to law or arbitrary and capricious, and therefore affirmed NPS's actions in full. This appeal followed.

First, we hold that NPS's determination that 36 C.F.R. § 2.2 does not apply to Park inholdings was not contrary to law or arbitrary and capricious. We further hold that the Conservation Association lacks standing to challenge NPS's approval of the 2015 Elk Reduction Program. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, and for the reasons stated below, we affirm the district court's judgment as to NPS's § 2.2 determination. Furthermore, we dismiss the portion of the appeal pertaining to NPS's approval of the 2015 Elk Reduction Program, and remand with instructions to vacate that portion of the judgment and dismiss the Conservation Association's claim thereof without prejudice.²

984 F.3d 924

I

We begin by laying out the necessary background. We do this in four steps. First , we offer an overview of the applicable legal framework. Second , we trace the salient aspects of the Park's history, recounting its genesis and its evolution into the park that we know today. Third , against this historical backdrop, we detail the two administrative actions that immediately gave rise to this appeal. Fourth , we summarize the procedural history of this case.

A

1

NPS's authority is derived from the National Park Service Organic Act. Under that statute, Congress has directed NPS to "promote and regulate the use of the National Park System by means and measures" that "conserve [and] ... 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).

To carry out this mandate, NPS promulgates regulations, which are codified at Title 36 of the Code of Federal Regulations. One such regulation that NPS promulgated––and the regulation centrally at issue here––is 36 C.F.R. § 2.2, which generally prohibits the "taking" of wildlife in national parks. 36 C.F.R. § 2.2(a)(1) ; see id. (enumerating various activities that "are prohibited," including "[t]he taking of wildlife"). "Taking," in turn, "means to pursue, hunt, harass, harm, shoot, trap, net, capture, collect, kill, wound, or attempt to do any of the above." Id. § 1.4(a).

With respect to its scope, § 2.2 contains an important limitation. Specifically, § 2.2 applies "regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States ." Id. § 2.2(g) (emphasis added). That is to say, § 2.2 ’s prohibition on hunting and trapping of wildlife applies to national park lands and waters, provided that those lands and waters are under the United States's legislative jurisdiction. By logical corollary, then, § 2.2 ’s takings prohibition does not apply on those national park lands and waters that are not under the United States's legislative jurisdiction. We now turn to elucidating the core concept of "legislative jurisdiction."

2

"Legislative jurisdiction" refers to "the authority of a state to make its law applicable to persons or activities." Adventure Commc'ns, Inc. v. Ky. Registry of Election Fin. , 191 F.3d 429, 435 (4th Cir. 1999) (quoting Hartford Fire Ins. Co. v. California , 509 U.S. 764, 813, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting)); accord RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW pt. IV, intro. note ( AM. LAW INST. 1987), Westlaw (database updated Oct. 2020) (describing "jurisdiction to prescribe" as "the authority of a state to make its substantive laws applicable to particular persons and circumstances" and noting that "[s]ince jurisdiction to prescribe was seen principally as a function of national legislation, it was sometimes referred to as legislative jurisdiction"); see United States v. Prado , 933 F.3d 121, 133 (2d Cir. 2019) ("Legislative, or prescriptive, jurisdiction concerns itself with the reach of a nation's (or any political entity's) laws.");

984 F.3d 925

RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 60 cmt. b ( AM. LAW INST. 1934), Westlaw (database updated Oct. 2020) ("Legislative jurisdiction in the United States is ordinarily exercised by Congress, a State legislature, or the legislative body of a municipal corporation."); David P. Granoff, Legislative Jurisdiction, State Policies and Post-Occurrence Contacts in Allstate Insurance Co. v. Hague, 81 COLUM. L. REV. 1134, 1134 (1981) (explaining that "[l]egislative jurisdiction is the power of a state to apply its law to a given set of facts, thereby...