United States Court of Appeals, District of Columbia Circuit
September 11, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-01751)
R. Glitzenstein argued the cause for appellant. With him on
the briefs was Katherine A. Meyer.
Heron, Attorney, U.S. Department of Justice, argued the cause
for federal appellees. With her on the brief were Jeffrey H.
Wood, Acting Assistant Attorney General, and Andrew Mergen,
J. David Gunter II, and Judith Coleman, Attorneys.
E. Petersen, Assistant Attorney General, Office of the
Attorney General for the State of Wyoming, argued the cause
for intervenor-appellee State of Wyoming. With him on the
brief was James Kaste, Senior Assistant Attorney General.
Douglas S. Burdin, Anna M. Seidman, and Jeremy E. Clare were
on the brief for intervenor-appellee Safari Club
Before: Millett, Circuit Judge, and Edwards and Williams,
Senior Circuit Judges.
EDWARDS, SENIOR CIRCUIT JUDGE
Senior Circuit Judge: This case involves a challenge
to decisions made by the National Park Service ("Park
Service") authorizing recreational hunting of elk in
Wyoming's Grand Teton National Park ("Grand
Teton"). Appellant claims that the Park Service violated
the National Environmental Policy Act ("NEPA") by
authorizing recreational hunts each year without first
conducting a NEPA review to assess whether and to what extent
hunting was in fact necessary for the proper management and
protection of the elk. Appellant's Br. 26.
Teton and the National Elk Refuge ("Refuge") are
home to the "Jackson herd, " one of the largest
concentrations of elk in North America. Two federal agencies
share primary responsibility for managing the Jackson herd:
the Park Service, which has jurisdiction over Grand Teton,
and the U.S. Fish and Wildlife Service ("FWS"),
which manages the Refuge. In 2007, the two agencies, acting
together, adopted a fifteen-year plan ("2007 Plan")
to manage the Jackson herd. The 2007 Plan set objectives to
reduce the population size of the herd, limit their risk of
disease, and conserve their habitat. In conjunction with the
2007 Plan, the agencies also issued a final environmental
impact statement ("EIS"), as required by NEPA.
2007 Plan analyzed six alternative long-term strategies for
managing the Jackson herd. The EIS, in turn, carefully
assessed the environmental risks posed by the alternative
strategies. In the end, the agencies adopted an elk-reduction
program pursuant to which the Park Service would authorize
elk hunting as needed to attain the Plan's population
objectives. The program also contemplated that the FWS would
reduce supplemental feed given to the elk during winter
months on the Refuge. Between 2007 and 2015, the Park Service
adhered to the elk-reduction program in determining the
number of elk authorized to be harvested and the number of
hunters deputized to participate in a hunt. As a result, from
2007 to 2015, the size of the herd decreased, as did the
number of deputized hunters and the number of elk authorized
to be harvested. During this same period, however, the FWS
failed to meet the 2007 Plan's objective to wean the herd
from supplemental feed.
Nelson and Timothy Mayo, wildlife photographers, filed suit
in the District Court challenging the Park Service's 2015
program for elk hunting. See Mayo v. Jarvis, 177
F.Supp.3d 91, 107-24 (D.D.C. 2016). They argued that the Park
Service was required to prepare a new NEPA analysis every
year that it implemented the fifteen-year elk-reduction
program, disclosing and analyzing the unique environmental
effects of each year's hunt. Because no such analysis was
done for the 2015 hunt authorization, they claimed that the
Park Service's action violated NEPA. Appellants also
contended that the FWS's failure to reduce supplemental
feeding in line with the Plan's goals necessitated the
preparation of a supplemental EIS. However, supplemental
feeding is managed by the FWS and Nelson and Mayo did not
seek to pursue any action against the FWS with respect to
that program. With respect to the NEPA claims, the District
Court denied the plaintiffs' summary judgment motion and
granted the Park Service's cross-motion for summary
judgment. Id. at 146. Nelson, but not Mayo, now
appeals the District Court's judgments.
brief to this court, the Park Service cogently explains why
the judgment of the District Court should be affirmed:
Under NEPA, an agency must take a hard look at the
environmental impacts of its proposed actions. The statute
does not, however, require the agency to take a new
look every time it takes a step that implements a
previously-studied action, so long as the impacts of that
step were contemplated and analyzed by the earlier analysis.
Here, the Park Service's 2007 Management Plan
contemplated that the Park Service would authorize annual
elk-reduction programs, and the 2007 EIS accompanying that
plan specifically analyzed the effects of such programs. . .
. [Appellant] has not identified any impact from the 2015
reduction program that was not studied in the 2007 EIS . . .
. The Park Service has therefore satisfied NEPA.
Br. 24. We agree. We therefore affirm the District
Court's judgment on the NEPA issues.
District Court, the plaintiffs also claimed that the
agencies' consultation over the effects of the
elk-reduction program on the grizzly bear population did not
satisfy the requirements of the Endangered Species Act
("ESA"). All parties agree that this claim is now
moot because the grizzly bear is no longer listed as a
threatened species under the ESA. See Endangered
Species and Threatened Wildlife and Plants, 82 Fed. Reg. 30,
502 (June 30, 2017) (to be codified at 50 C.F.R. pt. 17). We
therefore vacate the District Court's judgment on the ESA
claim. See United States v. Munsingwear, Inc., 340
U.S. 36, 39-40 (1950).
Statutory and Regulatory Background
National Environmental Policy Act
enacted the National Environmental Policy Act
("NEPA") in part "to promote efforts which
will prevent or eliminate damage to the environment and
biosphere and . . . enrich the understanding of the
ecological systems and natural resources important to the
Nation." 42 U.S.C. § 4321 (2012). To those ends,
NEPA requires all federal agencies to include a detailed
environmental impact statement ("EIS") "in
every recommendation or report on . . . major Federal actions
significantly affecting the quality of the human
environment." Id. § 4332(2)(C). This
process ensures that an agency will "consider every
significant aspect of the environmental impact of a proposed
action" and "inform the public" of its
analysis. Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983); see also
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768
(2004). "In other words, agencies must 'take a hard
look at [the] environmental consequences' of their
actions, and 'provide for broad dissemination of relevant
environmental information.'" Pub. Emps. for
Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1082
(D.C. Cir. 2016) (quoting Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989)) (internal
quotation marks omitted).
every agency action requires the preparation of a full EIS,
however. See, e.g., Duncan's Point Lot
Owners Ass'n Inc. v. FERC, 522 F.3d 371, 376 (D.C.
Cir. 2008) ("[F]ederal control and responsibility for an
action is not enough to trigger the EIS requirement.").
Thus, in determining whether a major federal action
"significantly affect[s]" the environment, 42
U.S.C. § 4332(2)(C), an agency may prepare a more
concise environmental assessment ("EA"),
see Council on Environmental Quality
("CEQ") regulations, 40 C.F.R. § 1508.9, which
may result in the agency issuing a "finding of no
significant impact" in lieu of a full EIS, see
id. § 1508.13.
NEPA analysis is required, its role is "primarily
information-forcing." Sierra Club v. FERC, 867
F.3d 1357, 1367 (D.C. Cir. 2017). As the Supreme Court has
explained, "[t]here is a fundamental distinction . . .
between a requirement that mitigation be discussed in
sufficient detail to ensure that environmental consequences
have been fairly evaluated, on the one hand, and a
substantive requirement that a complete mitigation plan be
actually formulated and adopted, on the other."
Robertson, 490 U.S. at 352. "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)).
now well-established that "NEPA imposes only procedural
requirements on federal agencies with a particular focus on
requiring agencies to undertake analyses of the environmental
impact of their proposals and actions." Pub.
Citizen, 541 U.S. at 756-57; see also Vt. Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435
U.S. 519, 558 (1978) (NEPA's mandate "is essentially
procedural"). It is equally clear that NEPA does
not impose a duty on agencies "to include in
every EIS a detailed explanation of specific measures which
will be employed to ...