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Mayo v. Reynolds

United States Court of Appeals, District of Columbia Circuit

November 7, 2017

Timothy Mayo, Appellee
Michael T. Reynolds, in his official capacity as Acting Director of the U.S. National Park Service, et al., Appellees Kent Nelson, Appellant

          Argued September 11, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01751)

          Eric R. Glitzenstein argued the cause for appellant. With him on the briefs was Katherine A. Meyer.

          Rachel 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.

          Erik 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 International.

          Before: Millett, Circuit Judge, and Edwards and Williams, Senior Circuit Judges.



         Edwards, 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.

         Grand 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.

         The 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.

         Kent 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.

         In its 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.

         Appellees' Br. 24. We agree. We therefore affirm the District Court's judgment on the NEPA issues.

         In the 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).

         I. Background

         A. Statutory and Regulatory Background

         1. National Environmental Policy Act

         Congress 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).

         Not 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.

         Where 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)).

         It is 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 ...

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