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FUND FOR ANIMALS v. CLARK

October 30, 1998

THE FUND FOR ANIMALS, et al., Plaintiffs,
v.
JAMIE RAPPAPORT CLARK, Director, U.S. Fish and Wildlife Service, et al., Defendants.



The opinion of the court was delivered by: URBINA

MEMORANDUM OPINION

 I. Introduction

 This matter is before the court upon plaintiffs' motion for a preliminary injunction, defendants' and intervener's respective oppositions thereto, and plaintiffs' reply. *fn1" Plaintiffs are the Fund For Animals, a group concerned with wildlife issues, and three individuals. Defendants are the federal agencies charged with administering the federal lands at issue in this case. Plaintiffs seek to have the court enjoin the defendants from conducting an organized hunt to thin the population of American bison living on federal lands in the state of Wyoming. After a review of the parties' pleadings, as well as the relevant law and the entire record herein, the court concludes that plaintiffs are entitled to the injunctive relief they seek.

 II. Background

 This matter concerns the proposed plan of the federal government to reduce the size of a herd of American bison (bison) located on federal lands in northwestern Wyoming. Specifically, the United States Fish and Wildlife Service (FWS), United States Park Service (USPS), and the National Forest Service (NFS) propose that a controlled hunt be held within specific federal parklands and reserve areas to reduce the herd size. The real issue, however, is not how the herd size is to be reduced or even if it should be reduced at all. Rather, the question before this court is whether the federal defendants have followed the proper procedures in permitting an organized hunt to reduce the number of bison in northwestern Wyoming. In order to answer this question, the court shall give a brief background description of the geographic area involved as well as the applicable wildlife in that area.

 The area which the bison have made home is in the northwestern part of Wyoming. The area in question is encompassed by the Grand Teton National Park (GTNP), the Bridger-Teton National Forest (BTNF) and the National Elk Refuge (NER). Around the turn of the century, the federal government created the NER in northwestern Wyoming as a winter reserve for elk. In 1929, the federal government created the GTNP as part of the National Parks System directly adjacent to the NER. The NER is managed by the FWS and the GTNP is managed by the USPS. Beginning in approximately 1912, the federal government implemented a winter feeding program on the NER for elk to provide an adequate winter food supply. Each winter, the federal government decides, based on several factors, the extent of that year's winter feeding program. Importantly, only a handful of times since the origination of this program have the conditions been such that the federal government decided not to offer the elk any supplemental feed during the winter.

 The bison were exterminated from northwestern Wyoming in approximately 1840 through over hunting. Bison were reintroduced into the area in 1948 with a small herd of twenty bison. This herd eventually settled on land that, in 1950, became part of the GTNP. During the 1960's the USPS and the Wyoming Game and Fish Department (WGFD) managed this small herd of bison through various methods. In 1968, a portion of the herd escaped its fenced area and thereafter roamed free within the confines of the GTNP. During the winter of 1975-76 however, the bison migrated further south into the NER. Since that time, the herd has spent a large majority of its winters on the NER. Sometime after it began migrating in the winter to the NER, the herd discovered the supplemental feed meant for the elk and began foraging on this feed. Unfortunately, the increased consumption of this feed by the bison displaced the elk, for whom the feed was originally intended. In an effort to eliminate this problem, the NER staff began in 1984 to put out separate feed lines for bison and elk. Due in large part to the availability of this supplemental winter feed, the bison herd has grown rapidly to where it now numbers approximately 435 animals. The federal defendants, in conjunction with the WGFD, have concluded that a herd of this size poses several hazards and thus have decided to reduce the number of animals in the herd through an organized hunt. In response to this decision, plaintiffs filed the instant action seeking emergency injunctive relief.

 III. Discussion

 A. Standard of Review

 In order for plaintiffs to prevail in their request for a preliminary injunction they must shoulder the burden of meeting the four part test enunciated in Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 842-44 (D.C. Cir. 1977). This four part test requires plaintiffs to demonstrate that (1) they are likely to succeed on the merits, (2) they will suffer irreparable harm if the injunction is not granted, (3) other interested parties will not suffer substantial harm if the injunction is granted, and (4) injunctive relief is in the public interest. See id. After examining the entire record in this case, the court concludes that plaintiffs have carried their burden. The court will now address each of the Holiday Tours factors in turn.

 B. Analysis

 1. Likelihood of Success on the Merits

 In conjunction with deciding plaintiffs' likelihood of success on the merits, the court must measure defendants actions against the arbitrary and capricious standard found in the Administrative Procedure Act, 5 U.S.C. Section 706(2)(A). Under this standard, the court will overturn any agency decision if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." See 5 U.S.C. § 706(2). An agency action is arbitrary and capricious if the agency has failed to follow procedure as required by law, see 5 U.S.C. § 706(2), or has entirely failed to consider an important aspect of the problem. See Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). In instances where a statute requires an agency to consider particular factors, "the only role of the court is to insure that the agency has considered the [factor]." Getty v. Federal Savings and Loan Ins. Corp., 256 U.S. App. D.C. 346, 805 F.2d 1050, 1055 (D.C. Cir. 1986) (internal quotations omitted).

 Plaintiffs offer two arguments to support their request for injunctive relief. First, plaintiffs claim that the federal defendants have violated the National Wildlife Refuge System Administration Act of 1966 (NWRSAA), 16 U.S.C. § 668dd et seq., as amended by the National Wildlife Refuge System Improvement Act of 1977 (NWRSIA) (both hereinafter collectively referred to as the "statute") by not conducting a compatibility study to determine if the supplemental feeding programs for elk and bison are "uses" that are compatible with the purpose of the NER. Second, plaintiffs allege that the federal defendants have violated the National Environmental Policy Act (NEPA) and its implementing regulations by not performing the required studies to determine the combined environmental impact of the elk and bison feeding programs and the bison management plan on the ecosystems of the GTNP, NER and BTNF. For both of these reasons, plaintiffs ask the court to enjoin the ...


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