In the 20th Century, the government steadily reversed course,
favoring policies of wildlife protection. In 1912, Congress
created the National Elk Refuge in northwestern Wyoming as a
winter reserve for elk. See 16 U.S.C. § 673. In 1929, the
federal government created the Grand Teton National Park
("GTNP") as part of the National Parks System directly adjacent
to the Elk Refuge. See 16 U.S.C. § 406-1 et seq. The United
States Fish and Wildlife Service ("FWS") manages the Elk Refuge
and the United States Park Service ("Park Service") manages the
Beginning in about 1912, the federal government implemented a
winter-feeding program on the Elk Refuge to provide an adequate
winter food supply for the elk. Each winter, the federal
government decides, based on several factors, how much it would
feed the elk in the upcoming year. Since 1912, only several
winters have been warm enough to allow the federal government
not to provide the elk with any supplemental feed. See Gov.Ex.
2 at 129-30. The federal government has never prepared an
environmental analysis addressing the Elk Refuge
supplemental-feed program. See Federal Defs.' Opp'n to Pls.'
Mot. for Prelim.Inj. ("Fed. Defs.' Opp'n") at 21.
Because human beings killed the last bison in northwestern
Wyoming in about 1840 after decades of unregulated hunting, the
Park Service reintroduced a small herd of 20 bison from
Yellowstone National Park into the Jackson Hole area in 1948.
See id. at 5. The Wyoming Game and Fish Department managed the
herd. In 1968, a portion of the herd escaped the fenced area and
roamed free within the Grand Teton National Park. See id.
During the winter of 1975-76, the bison began to migrate south
to the Elk Refuge and thereafter spent a large majority of each
winter on the Elk Refuge. See Jackson Bison Plan at 6.
Sometime after the migration, the bison discovered the
supplemental food for the elk and began foraging. See id. The
increased consumption of the feed by the bison displaced the
elk. See id. To eliminate this problem, the Elk Refuge staff
began to put out separate feed lines for the bison and elk in
1984. See id. Largely because of the availability of
additional feed in the winter, the bison herd in the area has
grown rapidly to more than 400. Based on this fact, the federal
defendants admit in the withdrawn FONSI that the elk
supplemental-feed program significantly affects the bison herd.
See Jackson Bison Plan at 35-38.
In 1996, as a result of unresolved bison-management issues,
the Grand Teton National Park, the Elk Refuge, the Wyoming Game
and Fish Department, and the Bridger Teton National Forest
(managed by the United States Forest Service) prepared the
Jackson Bison Plan and Environmental Assessment. See Fed.
Defs.' Opp'n at 2. The Jackson Bison Plan proposed several ways
to control the growth of the bison herd, including a
supplemental feeding program and organized hunts. This coalition
of groups released the Jackson Bison Plan as part of the FONSI
in 1996. The federal defendants stated in the FONSI that the
Jackson Bison Plan "does not constitute a major federal action
significantly affecting the quality of the human environment"
and thus, did not warrant the preparation of an EIS. See FONSI
dated September 1997 at 5.
In 1998, the federal defendants organized a hunt of the bison
herd. See Fed. Defs.' Opp'n at 9. On October 1, 1998, the
plaintiffs filed their complaint and, on October 9, 1998, the
plaintiffs filed an application for a preliminary injunction
seeking to enjoin the federal defendants in this court.
See Compl. and Pls.' Mot. for Prelim.Inj. The complaint
alleged, among other things, several NEPA violations. See
Compl. ¶¶ 70-74. In its October 30, 1998 Memorandum Opinion, the
court found that the federal defendants had violated NEPA and
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"),
by omitting the impact of the elk supplemental-feeding program
on the bison. See Mem. Op. at 8-9.
The plaintiffs argue that since the elk supplemental-feeding
program continues to exist without any environmental analysis,
the federal defendants have not resolved the controversy by
merely withdrawing the FONSI. See Pls.' Opp'n at 11. For the
reasons that follow, the court rules that the controversy
remains live until the federal defendants comply with NEPA.
A. Legal Standard
A case is moot when "the issues presented are no longer `live'
or the parties lack a legally cognizable interest in the
outcome." Albritton v. Kantor, 944 F. Supp. 966, 974 (D.C.
1996) (Urbina, J.) (quoting County of Los Angeles v. Davis,
440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). It is
well established that a "defendant's voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice." Friends of
the Earth v. Laidlaw, 528 U.S. 167, 189, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000) (quoting City of Mesquite v. Aladdin's
Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152
The standard for determining whether a case or controversy is
mooted by a defendant's voluntary conduct is "stringent." See
id. In determining mootness, the court has to make "absolutely
clear that the allegedly wrongful behavior could not reasonably
be expected to recur." Id. (quoting United States v.
Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89
S.Ct. 361, 21 L.Ed.2d 344 (1968)). "The `heavy burden of
persua[ding]' the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party
asserting the mootness." Id; see also United States v. W.T.
Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303
(1953) ("[V]oluntary cessation of allegedly illegal conduct does
not deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot.").
The movant must also show that "interim relief and events have
completely and irrevocably eradicated the effects of the alleged
violation." Albritton, 944 F. Supp. at 974 (citing Davis, 440
U.S. at 631, 99 S.Ct. 1379).
1. The Defendants Seek to Dismiss on the Ground that the Case
The federal defendants and the intervenor defendant both
assert that the voluntary withdrawal of the FONSI voids any
illegal conduct and moots the current controversy. Both
defendants claim that since there is no bison management plan in
effect, the NEPA violations no longer exist. Additionally, the
federal defendants present signed assurances by agency heads
that no planned bison hunts will occur until they prepare a
Jackson Bison Plan that complies with NEPA. The federal
defendants also state that they are taking steps to comply with
NEPA by contracting with the United States Institute for
Environmental Conflict Resolution (USIECR) to prepare a
situation assessment. See Fed. Defs.' Reply at 2. While
these may be appropriate steps to comply with NEPA, they do not
resolve all the issues raised in the complaint.
2. The Court Will Deny Both Defendants' Motions to Dismiss
a. The Defunct FONSI Does Not Encompass the Entire
The complaint alleges that both the federal defendants' plan
to organize bison hunts and the supplemental-feeding programs
violated NEPA and the APA. The plaintiffs assert the continued
validity of their original claim that the federal defendants
violated NEPA by failing to follow appropriate protocol when
implementing the elk supplemental feeding program and the bison
supplemental feeding program. In fact, the court ordered the
federal defendants to address both supplemental feeding programs
when preparing a new, adequate environmental assessment. See
Mem.Op. at 8 (citing 40 C.F.R. § 1508.25(a)(2)). In the
Memorandum Opinion, this court held that because the "agency is
involved in several actions which, cumulatively, have a
significant impact on the environment, then these actions should
be considered in the same environmental document so as to assess
adequately their combined impacts." See Mem.Op. at 8 (citing
40 C.F.R. § 1508.25(a)(3)).
The federal defendants incorrectly assert that the complaint
alleges only the FONSI claim and, thus, that the FONSI's
withdrawal moots the entire case. The federal defendants also
mistakenly assert that the complaint did not include the alleged
violations concerning the elk supplemental feeding program and,
therefore, that the court cannot consider this issue now. In
fact, the complaint clearly alleges NEPA violations regarding
the supplemental feeding programs for both the elk and the
bison. See Compl. ¶ 2. Thus, the federal defendants have
failed to demonstrate how the withdrawal of the FONSI moots the
b. The Federal Defendants' Voluntary Withdrawal of the FONSI
Does Not Deprive the Court of Jurisdiction
The federal defendants also contend that the withdrawal of the
FONSI moots the controversy. The court disagrees. As the Supreme
Court has held, "[I]t is well settled that a `defendant's
voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the
practice.'" Laidlaw, 528 U.S. at 189,