Mayo v. Jarvis

• Decision Date: 29 March 2016
• Docket Number: Civil Action No.: 14–1751 (RC), Civil Action No.: 15–0479 (RC)
• Citation: 177 F.Supp.3d 91
• Parties: 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: U.S. District Court — District of Columbia

177 F.Supp.3d 91

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.

Civil Action No.: 14–1751 (RC)
Civil Action No.: 15–0479 (RC)

United States District Court, District of Columbia.

Signed March 29, 2016

177 F.Supp.3d 97

Katherine A. Meyer, Meyer Glitzenstein & Crystal, Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Washington, DC, for Plaintiffs.

Caitlin Brynna Imaki, Trent S.W. Crable, Judith E. Coleman, U.S. Department of Justice, Washington, DC, for Defendants.

Erik Edward Petersen, Attorney General's Office for the State of Wyoming, Michael J. McGgrady, State of Wyoming, Cheyenne, WY, Anna Margo Seidman, Douglas Scott Burdin, Jeremy Evan Clare, Safari Club International, Washington, DC, for 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

RUDOLPH CONTRERAS, United States District Judge

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

177 F.Supp.3d 98

concerning the grizzly 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 judgment¹ (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” 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

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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.

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 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...