Defenders of Wildlife, et al v. Kenneth Salazar, et al

Filing

OPINION filed [1322265] (Pages: 12) for the Court by Judge Griffith [10-5144]

USCA Case #10-5144

Document #1322265

Filed: 08/03/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2011

Decided August 3, 2011
No. 10-5144

DEFENDERS OF WILDLIFE, ET AL.,
APPELLANTS
v.
KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00945)

Timothy J. Preso argued the cause for appellants. With
him on the briefs were Douglas L. Honnold and Sean M.
Helle. Sierra B. Weaver entered an appearance.
Mark R. Haag, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
was Robert H. Oakley, Attorney.
James Kaste, Senior Assistant Attorney General, Office
of the Attorney General for the State of Wyoming, was on the
brief for intervenor State of Wyoming in support of federal

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appellees. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.
Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: As required by the National
Wildlife Refuge System Improvement Act, the U.S. Fish and
Wildlife Service and the National Park Service devised a plan
to manage the elk and bison populations in the National Elk
Refuge and Grand Teton National Park. Part of this plan
includes ending the longstanding agency practice of feeding
these animals during the winter. The Defenders of Wildlife
challenge the plan because it fails to include a time certain for
ending the practice. The district court rejected the challenge,
and, for the reasons set forth below, we affirm its judgment.
I
The National Wildlife Refuge System includes over 550
refuges and 150 million acres of protected land. The
Department of the Interior, acting through the U.S. Fish and
Wildlife Service, manages these properties pursuant to the
National Wildlife Refuge Administration Act, Pub. L. No. 89669, 80 Stat. 926 (1966), as amended by the National Wildlife
Refuge System Improvement Act (“Improvement Act”), Pub
L. No. 105-57, 111 Stat. 1252 (1997) (codified at 16 U.S.C.
§§ 668dd-668ee).
The National Elk Refuge is part of that system. Located
just north of Jackson, Wyoming, and adjacent to Grand Teton
National Park, the Refuge was established in 1912 when
Congress designated 2000 acres in Jackson Hole as a “winter
game (elk) reserve.” Act of Aug. 10, 1912, Pub. L. No. 62261, 37 Stat. 293 (codified as amended at 16 U.S.C. § 673).
The Refuge is now a 24,700-acre expanse that the Secretary

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holds “for the grazing of, and as a refuge for, American elk
and other big game animals.” 16 U.S.C. § 673a. Its landscape
consists of meadows, marshes, streams, ponds, and open
fields across a valley floor that includes sagebrush and rock
outcroppings, all set against the majestic backdrop of the
Teton and Gros Ventre mountain ranges. Lucky wayfarers
may spot wolves, grizzly bears, trumpeter swans, and any
number of the area’s magnificent ungulates, including bison,
bighorn sheep, pronghorn, mule deer, and, of course, elk. The
National Elk Refuge’s eponymous herd comprises one of the
largest concentrations of elk in North America. It goes
without saying that these elk are of considerable ecological,
economic, and cultural value.
Around the turn of the last century, a series of severe
winters in Wyoming strained the elk populations and spurred
the good people of Jackson to save the elk by feeding them.
When Congress created the Refuge in 1912, the federal
government continued this practice, which the parties refer to
as supplemental feeding. For roughly seventy days each
winter, approximately 7000 elk and 1000 bison are drawn
daily to the federal trough.
In recent years, it has become apparent that this practice,
though born of benevolence, causes significant problems.
According to the Department of the Interior, supplemental
feeding leads to a seasonal concentration of elk and bison that
is “an unnatural situation that has contributed to . . . an
increased risk of potentially major outbreaks of exotic
diseases . . . [and] damage to and loss of habitat.” Final Bison
and Elk Management Plan and Environmental Impact
Statement for the National Elk Refuge / Grand Teton National
Park / John D. Rockefeller, Jr., Memorial Parkway 9 (Feb. 1,
2007) [hereinafter February 2007 Management Plan and EIS].
This risk poses an existential threat to the elk and bison and
puts the very purpose of the Refuge at jeopardy. See id.

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(noting that the risk of diseases posed by increased
concentrations of the animals has “the greatest potential to
hinder . . . [the] purposes . . . [of] the National Elk Refuge”).
One major problem is brucellosis—also known as “Bangs
disease, undulant fever, and contagious abortion,” id. at 564—
which causes an infected female to abort her first calf, leaving
behind contaminated fetal tissue on the ground capable of
transmitting the disease to other animals, id. at 129.
Brucellosis rates within normal Wyoming elk herds are
approximately two percent, but rates among elk that frequent
the Refuge feeding lines have averaged around seventeen
percent in recent years. Id. at 130. Another major problem,
chronic wasting disease (CWD), is the elk version of mad
cow disease: Like its bovine counterpart, CWD assaults the
central nervous system, causing brain lesions, behavioral
changes, a loss of body condition, and ultimately death. CWD
is caused by abnormal, non-living proteins known as prions
that persist in the soil where infected animals graze, even after
intensive efforts to remove them. Id. at 136-40. Statistical
sampling suggests that in open, elk-hunt areas in Wyoming,
the prevalence of CWD in elk averages around four percent.
Id. at 137. But in confined areas—like those created by the
feed lines—the prevalence can exceed ninety percent. Id.
CWD is not yet prevalent in the Refuge, but if that changes,
“environmental contamination will become a major concern
due to the disease’s ability to persist in the environment for a
long period of time.” Id.
All agree that supplemental feeding increases the risk of
such diseases. Without supplemental feeding, the elk would
gather in smaller groups, meaning that one sick elk would
infect only the handful of others around it. But because the
feeding lines bring so many together, the disease of one can
quickly become that of many, if not all.

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Spurred by a district court order requiring reassessment
of the winter feeding operation, see Fund for Animals v.
Clark, 27 F. Supp. 2d 8, 12-15 (D.D.C. 1998), the Fish and
Wildlife Service teamed with the National Park Service, * also
part of the Department of the Interior, to prepare a
management plan for the elk and bison populations. The
agencies analyzed six alternatives for managing the herds
over the next fifteen years. These plans ran the gamut from
maintaining the status quo to ending the practice of
supplemental feeding within five years.
In April 2007, the agencies settled on an approach that
would, over time, create conditions that would allow the elk
and bison to survive the winter without supplemental feeding
and, in the meantime, manage the risk of contagion until the
practice ended. In essence, their plan seeks to restore natural
forage that will allow the animals to sustain themselves
during wintertime without the help of supplemental feeding.
Bison and Elk Management Plan: National Elk Refuge and
Grand Teton National Park 129-34 (Apr. 2007) [hereinafter
April 2007 Management Plan]. For example, it provides for
substantial reductions in the numbers of elk and bison,
primarily through short-term increases in hunting, so that their
populations will be closer to levels that would have existed
had there never been a practice of supplemental feeding. Id. at
134-37. The plan also seeks to reduce disease transmission by
rotating feed sites, spreading feed in long lines, separating elk
and bison from neighboring livestock, providing increased
CWD monitoring, and allowing Wyoming to vaccinate the
herds. Id. at 138-39. Ultimately, over a fifteen-year period,
“[a]s habitat and population objectives are achieved, [the
agencies will aim to] decrease reliance on intensive
*

Because the plan in this case also addresses management of elk
and bison populations in nearby Grand Teton National Park, the
National Park Service, which manages the park, joined in the effort.

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supplemental winter feeding, including complete transition to
free-standing forage if and when several established criteria
are met, including support from the Wyoming Game and Fish
Department and the public.” Id. at 137.
Before adopting this approach, the agencies considered
and rejected the petitioners’ preferred alternative, which
would have committed the Secretary to ending supplemental
feeding within five years. As described in their brief, the
agencies recognized that this alternative “would provide some
advantages in terms of habitat benefits, a lower prevalence of
brucellosis over the long term, and a lower risk for the spread
of chronic wasting disease.” Appellees’ Br. 19 (citing Record
of Decision, Final Bison and Elk Management Plan and
Environmental Impact Statement: National Elk Refuge and
Grand Teton National Park 10 (Apr. 2007) [hereinafter
Record of Decision]). But they also found that “[this
alternative] would likely result in an increase in elk mortality
from starvation, predation, and disease related to poor body
condition, particularly in severe winters.” Id. (citing Record
of Decision 10). This in turn would lead to a “long-term
decrease in elk hunting and viewing opportunities in the
Refuge, with attendant impacts on the area economy, and
could cause elk herd numbers to fall below [the Wyoming
Game and Fish Department’s] statewide objective in some
years.” Id. at 19-20 (citing Record of Decision 10).
The agencies concluded that their preferred plan “[is
more] consistent with regional herd management objectives,
better balances divergent stakeholder interests, builds upon
success on the ground, and enables managers to adapt to new
information and changing conditions,” all while preparing the
animals for the eventual cessation of supplemental feeding
and providing most of the benefits offered by the petitioners’
preferred alternative. Id. at 20 (citing Record of Decision 14).
On the issue of when to end supplemental feeding, the

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agencies stressed that although they are committed to
abandoning the practice, they would “not preclude the use of
supplemental feeding or other management tools as [they]
work to resolve the bison and elk management issues . . . .
[N]or [would they] make predictions about how fast [they
could] implement the phased approach for improving forage,
reducing the [elk and bison populations], and reducing the
need for supplemental feed . . . . When the biological, social,
and political conditions enable [them] to consider a phase-out
of feeding, [the plan’s] adaptive framework provides [the
agencies] with that flexibility.” Record of Decision 13. In
essence, the agencies determined that a deadline for ceasing
supplemental feeding would be unduly restrictive in light of
the many variables and concerns that need to be accounted for
in managing the Refuge.
The Defenders of Wildlife, the Jackson Hole
Conservation Alliance, the National Wildlife Refuge
Association, the Greater Yellowstone Coalition, and the
Wyoming Outdoor Council (collectively, the Defenders) filed
suit in the district court, challenging the Secretary’s plan
under the Administrative Procedure Act. They argue the
plan’s failure to commit to a deadline for ending supplemental
feeding was arbitrary and capricious given the Secretary’s
duty under the Improvement Act to “provide for the
conservation of . . . wildlife” and “ensure that the biological
integrity, diversity, and environmental health of the [wildlife
refuge system] are maintained.” 16 U.S.C. § 668dd(a)(4)(A)(B). The district court granted summary judgment for the
agencies, reasoning that the plan accounted for and managed
the dangers of supplemental feeding and also created a
program for phasing out the practice over a fifteen-year
period. Defenders of Wildlife v. Salazar, 698 F. Supp. 2d 141,
147-48 (D.D.C. 2010). The Defenders of Wildlife filed a
timely appeal, and we take jurisdiction pursuant to 28 U.S.C.
§ 1291.

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We review the district court’s grant of summary
judgment de novo. Castlewood Prods., LLC v. Norton, 365
F.3d 1076, 1082 (D.C. Cir. 2004). Under the Administrative
Procedure Act, we set aside agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Our review
focuses on whether the agency examined the relevant data,
articulated a satisfactory explanation for its action, based its
decision on the relevant factors, and committed no clear error
of judgment. Bluewater Network v. EPA, 370 F.3d 1, 11 (D.C.
Cir. 2004).
II
The parties agree that supplemental feeding poses serious
risks for the elk and bison in the Refuge. The only question
this case presents is whether it was arbitrary and capricious
for the Secretary to transition away from supplemental
feeding without committing himself to ending the practice on
a particular date.
The Defenders argue it was, inasmuch as the very
purpose of the National Wildlife Refuge System, as set out in
the Improvement Act, “is to administer a national network of
lands and waters for the conservation, management, and
where appropriate, restoration of the fish, wildlife, and plant
resources and their habitats within the United States for the
benefit of present and future generations of Americans.” 16
U.S.C. § 668dd(a)(2). To that end, the Defenders point out,
the Act mandates that the Secretary manage refuges to
“provide for the conservation of fish, wildlife, and plants, and
their habitats within the System” and to “ensure that the
biological integrity, diversity, and environmental health of the
System are maintained for the benefit of present and future
generations of Americans.” Id. § 668dd(a)(4)(A), (B)
(emphases added). The Act also instructs the Secretary to

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“sustain and, where appropriate, restore and enhance, healthy
populations of fish, wildlife, and plants utilizing . . . methods
and procedures associated with modern scientific resource
programs.” Id. § 668ee(4). The Defenders argue that the
Secretary’s plan is unlawful because it does not fix a definite
time for ending supplemental feeding, even though the
agencies have acknowledged that the dangers posed by this
practice imperil explicit statutory objectives. See February
2007 Management Plan and EIS 9. Underlying this statutory
argument is some common sense: the whole point of a
National Elk Refuge is to provide a sanctuary in which
populations of healthy, reproducing elk can be sustained. See
16 U.S.C. § 673a (creating a “refuge” for the elk). The Refuge
can hardly provide such a sanctuary if, every winter, elk and
bison are drawn by the siren song of human-provided food to
what becomes, through the act of gathering, a miasmic zone
of life-threatening diseases.
The Defenders acknowledge that the Improvement Act
also requires the Secretary to consider other factors such as
the importance of recreation on refuge lands and cooperation
with state officials in pursuing the objectives of the Act. See
id. § 668dd(4)(I), (M). They argue, however, that such
considerations may be pursued only when “compatible” or
“consistent with” the conservation mission of the System and
the purposes of each refuge. See id. § 668dd(a)(3)(B), (e)(3).
Reading the several provisions of the Act that emphasize the
importance of wildlife conservation together with the general
purpose of the National Wildlife Refuge System, the
Defenders contend that the agencies’ top priority in managing
the Refuge must be conservation, and other considerations
must not hinder that objective.
For their part, the Secretary and Wyoming (intervening as
a defendant-appellee in this case) argue that the Improvement
Act confers upon the Secretary broad managerial discretion in

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how to pursue the Act’s objectives. They concede that
conservation is the overarching objective, but argue that it
cannot be the sole consideration. After all, the Act lists
fourteen factors that the Secretary “shall” consider in
administering the System, including, among others,
“ensur[ing] effective coordination, interaction, and
cooperation” with adjoining landowners and State fish and
wildlife agencies in pursuit of the objectives of the Act. Id.
§ 668dd(a)(4)(E).
Given the discretion afforded him, the Secretary argues
that the agencies reasonably determined that the plan is
consistent with the objectives of the Act and the purposes of
the Refuge. The plan addresses the risk of diseases by
(1) increasing natural forage and decreasing the herd sizes,
which will work in tandem to create conditions under which
supplemental feeding can be stopped without unduly
increasing the risk of starvation, (2) monitoring and managing
the diseases that accompany gathering at the feed lines, and
(3) progressively reducing reliance on supplemental feeding
when certain criteria have been met.
There is no doubt that unmitigated continuation of
supplemental feeding would undermine the conservation
purpose of the National Wildlife Refuge System. But we
cannot conclude that the agencies acted unlawfully by
adopting a plan that contained no deadline for ending the
practice, and that is the only issue before us. The record
amply demonstrates that the agencies collected the relevant
data, identified the dangers posed by supplemental feeding,
and adopted a plan to mitigate those dangers. That they also
determined that the many objectives of the Act, including
conservation, could best be met without implementation of a
fixed deadline for stopping supplemental feeding was not
arbitrary or capricious.

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The district court was right that the plan “might well have
been unreasonable had the agencies categorically refused to
phase out the winter feeding program in spite of all the
evidence in the record about the dangers of supplemental
feeding.” Defenders of Wildlife, 698 F. Supp. 2d at 148. But
they did no such thing. Instead, they selected an approach that
is geared toward ending the practice over time while
maintaining the flexibility needed to respond to facts on the
ground. The Defenders are understandably concerned that this
flexibility could be used to continue the practice indefinitely.
But the agencies must proceed in a manner that is consistent
with the science and accounts for the risks posed by
supplemental feeding. There is nothing the agencies have said
or done that causes us to doubt that they will. It is highly
significant and indeed dispositive to us, as it was to the
district court, that the agencies are committed to ending
supplemental feeding. We do not know precisely how they
will proceed, and that makes it impossible, at this stage, to
declare that their plan is arbitrary and capricious simply
because it does not specify a particular date by which the
practice will cease. Should the agencies act unreasonably in
establishing criteria for the transition or in otherwise carrying
out the plan, that will be a different issue for another panel.
III
The Defenders also argue that the plan unlawfully gives
the Wyoming Fish and Game Department a veto over whether
supplemental feeding will end. They point to language in the
plan stating that the agencies will seek to “decrease reliance
on intensive supplemental winter feeding, including complete
transition to free-standing forage if and when several
established criteria are met, including support from the
Wyoming Game and Fish Department and the public.” April
2007 Management Plan 137 (emphasis added).

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Regardless of how we might have read this language in
the first instance, the Secretary has assured us in his briefs and
at oral argument that the language confers no veto. See
Appellees’ Br. 34 (characterizing the disputed provision as
“aspirational” rather than a grant of any power to Wyoming);
Wyoming's Br. 28 n.6 (also agreeing that Wyoming does not
have a veto); cf. Wyoming v. United States, 279 F.3d 1214,
1234 (10th Cir. 2002) (“[F]ederal management and regulation
of federal wildlife refuges preempts state management and
regulation of such refuges . . . where state management and
regulation stand as an obstacle to the accomplishment of the
full purposes and objectives of the Federal Government.”).
We take the Secretary at his word that Wyoming has no veto
over the Secretary’s duty to end a practice that is concededly
at odds with the long-term health of the elk and bison in the
Refuge.
IV
For the foregoing reasons, the district court’s judgment is
Affirmed.

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