(concluding that the fisheries agency made a convincing case that the environmental impact of the quota reduction rulemaking was "insignificant").
Finally, the Service established convincingly that its modifications to the swan hunting season minimized the impact of the Trumpeter swan quota. As noted, each subsequent EA made additional modifications — fewer hunting permits, reduced quota, smaller hunt areas, and increased monitoring — to the swan hunting season to afford greater protection to the Tri-State swans. E.g., A.R. 381. In light of these modifications, the defendants met the fourth factor of the four-part test. Hodel, 840 F.2d at 62 (finding the Service's presentation in support of a hunting plan of limited scope to be sufficiently convincing).
b. The "Significantly Affects" Factors
The defendants' conclusion that the Trumpeter swan quota did not have highly controversial or uncertain effects, and was not likely to cause loss of historic resources, establish a precedent, or adversely affect a threatened species was not arbitrary or capricious. As noted, in determining whether an action "significantly affects" the environment and thus triggers an EIS, the agency must consider the degree to which, inter alia, the effects on the quality of the human environment are likely to be highly controversial or highly uncertain, the action may establish a precedent for future actions, the action may cause loss of significant scientific, cultural, or historical resources, and the action may adversely affect an endangered or threatened species. 40 C.F.R. § 1508.27(b).
First, for an action to qualify as "highly controversial" within the meaning of NEPA, there must be "a substantial dispute [about] the size, nature, or effect of the major federal action rather than the existence of opposition to a use." 40 C.F.R. § 1508.27(b)(4); Friends of the Earth v. Army Corps of Eng'rs, 109 F. Supp.2d 30, 43 (D.D.C. 2000); see also Rucker v. Willis, 484 F.2d 158, 162 (4th Cir. 1973). Controversy in the context of NEPA does not exist merely because some are highly agitated about, vigorously oppose, or have raised questions about the action.*fn18 Fund for Animals v. Frizzell, 530 F.2d 982, 988 n. 15 (D.C. Cir. 1975); Coalition On Sensible Transp. Inc. v. Dole, 642 F. Supp. 573, 588 (D.D.C. 1986); Peshlakai v. Duncan, 476 F. Supp. 1247, 1255 n. 23 (D.D.C. 1979). Nor does NEPA controversy exist simply because there are conflicting views among experts. Sierra Club v. Watkins, 808 F. Supp. 852, 862 (D.D.C. 1991).
In this case, it is "plainly apparent from the record" that there is disagreement over the effects of the proposed Trumpeter swan quota. Pls.' Mot. for Summ. J. at 41. In fact, in the 2001 EA, the Service "readily acknowledge[d] that biologists' opinions differ on the role of the proposed swan hunting seasons on the status and distribution of RMP Trumpeter swans." A.R. 411; see also A.R. 2625 (noting as part of the 2000 EA that "[t]here was a wide disparity of opinion offered on the actual impact of this limited harvest on [RMP] redistribution"), 2618 (noting that "the major controversy seems to be determination of the appropriate harvest alternative for Utah").*fn19
But the record also shows that under this circuit's precedent, this disagreement does not qualify as a NEPA controversy. No other federal agency objected to the 2001 EA or requested that an EIS be prepared. Coalition On Sensible Transp. Inc. v. Dole, 642 F. Supp. 573, 587 (D.D.C. 1986) (deeming significant that no agency charged with environmental responsibility opposed a proposed highway project); see Friends of the Earth, 109 F. Supp.2d at 43 (requiring an EIS for certain casino permits in part because three other federal agencies had "pleaded with the Corps to prepare an EIS"). Although the Bureau of Reclamation and Yellowstone National Park had expressed strong concerns about the 2000 EA, the modifications made to the 2001 EA apparently helped ameliorate their concerns. Compare A.R. 1043-44, 1108-09 (criticizing the 2000 EA as deficient in evaluating the impact of the restructured hunting season on the Tri-State Trumpeter flock) with A.R. 496-97 (noting the 2001 EA conclusion of insignificant impact and stating that "[w]e look forward to working with you to monitor and mitigate" the impact on the Yellowstone population) and 526h-526i (stating that the 15-swan quota was reasonable and the area and season restrictions were improvements, and urging increased monitoring).
Nor does disagreement between the Service's experts and outside experts create a NEPA controversy, for "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Sierra Club, 808 F. Supp. at 862; see also Fund for Animals v. Babbitt, 903 F. Supp. 96, 115 (D.D.C. 1995) (noting that "disagreement [among experts] does not render the agency's action arbitrary and capricious"). Finally, the fact that the quota is the subject of disagreement between the plaintiffs and those with hunting interests does not indicate a NEPA controversy. Ctr. for Marine Conservation, 1993 WL 108944, at *5 (concluding that although a tuna quota reduction would cause some controversy between the fishing industry and conservation groups, its effects were not "highly controversial" under NEPA). Therefore, the defendants' conclusion that the quota was not "highly controversial" was not arbitrary or capricious. 40 C.F.R. § 1508.27(b)(4).
Second, the defendants were not acting arbitrarily or capriciously in concluding that the Trumpeter swan quota did not have highly uncertain effects, would not cause the loss of historic resources, and would not adversely affect a threatened species. 40 C.F.R. § 1508.27(b)(5)-(6), (8)-(9). The updated Tri-State flock survey information that the Service considered in issuing the 2001 EA significantly lessened any uncertainty as to the impact of the Trumpeter swan quota on the Tri-State population (whether or not considered "historic"*fn20). Id. § 1508.27(b)(5), (8); cf. Anderson v. Evans, 314 F.3d 1006, 1019 (9th Cir. 2002) (finding uncertainty when "no one, including the government's retained scientists, has a firm idea what will happen to the local whale population if the Tribe is allowed to hunt and kill whales"). As for the possibility of adversely affecting a threatened or endangered species, at the time the Service issued the 2001 EA (and as is the case today), the Trumpeter swan did not qualify as either threatened or endangered.*fn21 40 C.F.R. § 1508.27(b)(9); A.R. 367-68, 2548.
Finally, there is no indication in the record that the authorization of the Trumpeter swan quota would establish a precedent that would form "a link in a chain of bureaucratic commitment that will become progressively harder to undo the longer it continues." Sierra Club v. Marsh, 769 F.2d 868, 879 (1st Cir. 1985); 40 C.F.R. § 1508.27(b)(6). Since the Service first authorized the quota in 1995, it has made a number of modifications regarding the permit, quota, area, and monitoring requirements that indicate a willingness on the agency's part to revisit the original authorization. E.g., A.R. 369-73 380-90, 803-06, 814-24, 2624-28, 2637-48. Morover, in the 2001 EA the Service indicated that the Montana and Nevada seasons will be reviewed regularly:
The Service plans to review results with respect to
both Tundra swan and Trumpeter swan harvests annually
and proposed changes would be considered as a normal
part of the annual hunting regulations process. The
Service views the seasons in Montana and Nevada as
operational seasons that are subject to the normal
annual review of status and harvest of the affected
populations. Adjustments to these seasons will be
made, if needed, as part of the normal annual
regulatory process for hunting migratory birds.