Greater Yellowstone Coalition v. Tidwell
| Decision Date | 10 July 2009 |
| Docket Number | No. 07-8083.,07-8083. |
| Citation | 572 F.3d 1115 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | GREATER YELLOWSTONE COALITION; Jackson Hole Conservation Alliance; Wyoming Outdoor Council, Petitioners-Appellants, v. Tom TIDWELL,<SMALL><SUP>*</SUP></SMALL> in his official capacity as Chief, United States Forest Service; Carol "Kniffy" Hamilton, in her official capacity as United States Forest Service Supervisor, Bridger-Teton National Forest; James M. Hughes, in his official capacity as Director, United States Bureau of Land Management; Bob Bennett, in his official capacity as Wyoming State Director, United States Bureau of Land Management, Respondents-Appellees, and State of Wyoming; Wyoming Stock Growers Association, Intervenors-Respondents-Appellees. |
Timothy J. Preso (Abigail M. Dillen with him on the briefs), Earthjustice, Bozeman, MT, for Petitioners-Appellants.
Robert H. Oakley, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.(Ronald J. Tenpas, Assistant Attorney General; James C. Kilbourne and Lori Caramanian, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., with him on the brief) for Respondents-Appellees.
C. Levi Martin, Senior Assistant Attorney General, Cheyenne, WY (Jay A. Jerde, Deputy Attorney General, Cheyenne, WY, and John C. McKinley of Davis & Cannon, Cheyenne, WY, with him on the briefs) for Intervenors-Respondents-Appellees.
Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.
Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively "GYC") sent a letter to the United States Forest Service ("Forest Service") and the United States Bureau of Land Management ("BLM") requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370. Unsatisfied with the agencies' response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various federal permitting regulations in connection with the feedgrounds' authorizations. In addition to seeking review of the agencies' actions, GYC requested injunctive relief requiring, inter alia, the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed to this court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we vacate the portions of the district court order that have become moot and affirm the other portions.
Each winter the State of Wyoming feeds approximately 13,000 elk at twenty-two designated feedgrounds. All or part of twelve of the Wyoming feedgrounds are located on federal lands administered by either the Forest Service or BLM. The Forest Service authorizes use of the land in the Bridger-Teton National Forest for eight feedgrounds: Alkali, Fish Creek, Dog Creek, Dell Creek, Fall Creek, Forest Park, Upper Green River, and Muddy Creek. The Forest Service also authorizes a test-and-slaughter program at the Muddy Creek feedground. This program was created to reduce brucellosis levels among elk that use feedgrounds. BLM's Pinedale Resource Area hosts four feedgrounds: Scab Creek, Franz, Bench Corral, and Finnegan.
GYC contends that in recent years substantial scientific information has emerged demonstrating the unnatural concentration of elk on feedgrounds significantly increases the incidence of disease outbreak among feedground elk populations. Specifically, GYC points to research indicating brucellosis prevalence among elk averages twenty-four percent at the twelve feedgrounds where the Wyoming Game and Fish Department ("Wyoming") vaccinates for the disease and thirty-two percent at a single feedground where no vaccination is conducted. By contrast, brucellosis prevalence among Wyoming elk not frequenting feedgrounds is only two percent. GYC also claims the unnatural elk concentrations on Wyoming's feedgrounds present a grave risk of a chronic wasting disease epidemic among the feedground elk populations. Chronic wasting disease affects the central nervous system and ultimately results in the death of infected animals.
The Forest Service authorizes use of the Bridger-Teton National Forest feedgrounds by the State of Wyoming through a special use permitting system pursuant to 36 C.F.R. § 251. The State of Wyoming operates the feedgrounds. At the time GYC brought this action, only four of the Bridger-Teton National Forest feedgrounds, Alkali, Dell Creek, Upper Green River, and Forest Park, had special use permits. The permits for the other four Bridger-Teton feedgrounds, Fish Creek, Dog Creek, Muddy Creek, and Fall Creek, had expired. In addition, three of the feedgrounds, Dell Creek, Upper Green River, and Muddy Creek, had never been subject to an environmental analysis.1 The most recent environmental analysis of any of the five other feedgrounds occurred in 1981. Of these five environmental analyses, only two discussed wildlife disease. Neither contained any discussion of chronic wasting disease.
Like the Forest Service, BLM allows the State of Wyoming to operate feedgrounds on certain federal lands. In 1981, BLM and Wyoming entered into a Memorandum of Understanding ("MOU") regarding Wyoming's use of BLM lands for elk feedgrounds. No land use permits were issued for the use of this federal land. The only environmental analysis of the feedgrounds was prepared in connection with the 1981 MOU. The environmental analysis did not consider any disease-related impacts of the feedgrounds.
On November, 17, 2005, GYC sent a letter to the Forest Service and BLM alleging various NEPA and federal regulatory violations based upon the lack of permits and environmental analyses for the feedgrounds. When the agencies did not take the actions requested by GYC to remedy these violations, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming against various Forest Service and BLM officials. The State of Wyoming and the Wyoming Stock Grower's Association were granted intervention as of right as respondents by the district court.
Before the district court, GYC alleged: (1) the Forest Service was required under NEPA to conduct environmental analyses of its eight feedgrounds and the test-and-slaughter program, and failed to do so; (2) the Forest Service's authorization of certain facilities for elk-feeding operations and the test-and-slaughter program without issuing permits violated the agency's special use permitting regulations; and (3) BLM's authorization of facilities for elkfeeding violated BLM's own permitting regulations and the lack of current environmental analyses of the feedgrounds violated NEPA. GYC asked the court to award injunctive relief requiring Respondents to undertake environmental analyses of the feedgrounds and enjoining authorization of the test-and-slaughter program until an environmental analysis of the program occurred.
On August 24, 2007, the district court issued a Memorandum Opinion and Order rejecting GYC's claims. First, with respect to the Forest Service feedgrounds for which permits existed, the district court refused to compel supplemental environmental analyses because it concluded the major federal action was completed when the permits were issued. Second, with respect to the Forest Service feedgrounds without permits, the district court concluded GYC lacked standing to raise a NEPA challenge and there was no final agency action sufficient to raise a claim under the Administrative Procedure Act. Third, with respect to the test-and-slaughter program at the Muddy Creek feedground, the district court concluded GYC lacked standing on the permitting claim and the NEPA claim failed because the Forest Service's authorization of the facilities was not a major federal action. Finally, with respect to the BLM feedgrounds, the district court rejected GYC's permitting and NEPA claims, concluding BLM adequately authorized the feedgrounds pursuant to the 1981 MOU.
On appeal, GYC seeks review of the agencies' decisions not to conduct the requested new or supplemental environmental analyses of the feedgrounds. GYC also seeks to enjoin use of the test-and-slaughter facilities until an environmental analysis is undertaken and requiring the Forest Service and BLM to undertake environmental analyses of the twelve Wyoming feedgrounds. After the briefs were filed in this appeal, the Forest Service granted long-term permits authorizing Wyoming to use the four previously non-permitted feedgrounds, including the test-and-slaughter program at Muddy Creek, for winter elk management activity.2 In connection with the long-term authorizations, the Forest Service undertook an environmental analysis of the Alkali Creek, Fish Creek, Fall Creek, Muddy Creek (including the test-and-slaughter program), Dog Creek, and Upper Green River feedgrounds. The environmental analysis considered the risks and impacts of brucellosis and chronic wasting disease.
GYC brings its claims pursuant to 5 U.S.C. § 706, the judicial review provision of the Administrative Procedure Act, which allows courts to review agency action and compel agency action unlawfully withheld. The district court exercised jurisdiction over the claims pursuant to 28 U.S.C. § 1331. This court reviews the district court's decision de novo. N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001). "We will not set aside an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with...
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