The opinion of the court was delivered by: James S. Gwin, United States District Judge:
OPINION & ORDER and [Resolving Doc. Nos. 109, 111, 113]
In 2006, District Judge Ricardo M. Urbina found that the United States Fish and Wildlife Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., when it failed to consider the cumulative impact of the 1997 to 2005 opening and expansion of hunting on sixty National Wildlife Refuges.*fn1 In response, the Fish and Wildlife Service instructed each affected refuge to step back in time, conduct a cumulative impact analysis, and reconsider its earlier decision to authorize hunting.
The Plaintiffs now contend that the refuges again did not properly identify and measure the cumulative impact of hunting across the Refuge System, despite statutory language in NEPA and Judge Urbina's order requiring a cumulative analysis. [Doc. 63; Doc. 109.] The Service, on the other hand, says the revised assessments, completed in 2007, adequately gauged the cumulative impact of hunting under NEPA standards and again found no significant impact from hunting. [Doc. 111.] Defendant-Intervenors U.S. Sportsmen's Alliance Foundation and the Safari Club add that the Service's 2008 national-level cumulative impact assessment, which purports to measure the cumulative impact of increased hunting on the sixty refuges from 1997 to 2006, bolsters the Service's argument. [Doc. 113 at 15-16.]
Both sides move for summary judgment. [Doc. 109; Doc. 111; Doc. 113.] Under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, the Court's review is limited to whether the Service adequately considered and disclosed the environmental impact of its actions and to ensure the Service's decisions are not arbitrary or capricious.
Because the Service's refuge-level assessments comply with NEPA and Judge Urbina's order, and because the Service's conclusion that the cumulative impact of hunting will not significantly affect the environment is neither arbitrary nor capricious, the Court will not set aside the Service's final rules authorizing these hunts. The Court thus DENIES the Plaintiffs' motion for summary judgment, GRANTS the Defendants' motion for summary judgment, and GRANTS the Defendant-Intervenors' motion for summary judgment.
A. Hunting Within the Refuge System
The National Wildlife Refuge System consists of over 540 wildlife refuges spanning more than 95 million acres, with locations in all fifty states. [Doc. 111 at 4.] The Refuge System is home. to more than 700 species of birds and 220 species of mammals, and provides habitat for more than 250 threatened and endangered species. Individual refuges vary greatly in size. The Yukon Delta National Wildlife Refuge in southwest Alaska, for example, encompasses more than 19 million acres; the Cedar Point National Wildlife Refuge along Lake Erie in Ohio consists of 2500 acres.*fn2
Since the Refuge System's inception, Congress has gradually increased recreational activities in the refuges, including sport hunting. In 1997, for example, Congress identified six "wildlife-dependent recreational activities" that are "priority general public use[s]." 16 U.S.C. § 668dd(a)(3)(C). These priority uses are hunting, fishing, wildlife observation, wildlife photography, environmental education, and environmental interpretation. 16 U.S.C. § 668dd(a)(3)(A). At the same time, however, Congress has attempted to mitigate the effects of increased recreational use of the refuges. Thus, the Fish and Wildlife Service must still "provid[e] for the conservation of fish, wildlife, plants, and their habitats," "monitor[ ] the status and trends of fish, wildlife, and plants in each refuge," and "ensure the biological integrity, diversity, and environmental health of the system." 16 U.S.C. § 668dd(a)(3)-(4).
Compatible wildlife-dependent recreational uses within refuges "should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable, and appropriate." 16 U.S.C. § 668dd(a)(3)(D). To that end, hunting is allowed only after a lengthy review process. Before opening a refuge to hunting, the refuge must complete defined steps that include: (1) prepare a Hunting Plan and a Compatibility Determination; (2) prepare a NEPA document (either an Environmental Assessment and a Finding of No Significant Impact, or an Environmental Impact Statement and Record of Decision); and (3) publish a proposed and a final rule in the Federal Register. [Doc. 109 at 17-18.]
Between 1997 and 2005, the Fish and Wildlife Service issued nine final rules creating or expanding recreational hunting opportunities on sixty wildlife refuges. [Doc. 1 at 37; Doc. 95 at 9.] These final rules were the subject of Judge Urbina's August 2006 summary judgment opinion.
B. Judge Urbina's Opinion & Order
After the Plaintiffs' challenged the Service's final rules, Judge Urbina held that the Fish and Wildlife Service violated NEPA when it failed to "consider the cumulative impacts of increased hunting" prior to promulgating the rules expanding sport hunting on the refuges. Fund For Animals v. Hall, 448 F. Supp. 2d 127, 130 (D.D.C. 2006).
Under NEPA, an agency must prepare an Environmental Impact Statement for any proposed major federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). An Environmental Impact Statement must detail the environmental impact of the proposed action, any adverse effects, alternatives to the proposed action, the relationship between man's short-term uses and the long-term effects, and any irreversible commitments of resources. Id.
If it is not clear whether an Environmental Impact Statement is required, the agency must prepare an Environmental Assessment that sets forth the evidence and analysis for proceeding with or without an Environmental Impact Statement. 40 C.F.R. §§ 1501.4, 1508.27. If, after conducting an Environmental Assessment, the agency determines that an Environmental Impact Statement is warranted, it must conduct one. Id. § 1501.4(c)-(d). If not, the agency must issue a Finding of No Significant Impact explaining why the proposed action would not significantly affect the environment. Id. § 1501.4(e).
When earlier before Judge Urbina, the individual refuges conducted Environmental Assessments and concluded that opening or expanding recreational hunting would not have a significant impact on the environment. Because of these Findings of No Significant Impact, the Fish and Wildlife Service did not draft an Environmental Impact Statement before publishing its final rules. In response, the Plaintiffs alleged that, prior to issuing the final rules, the Fish and Wildlife Service overlooked the cumulative impact of hunting-that is, the overall, synergistic effect of significantly expanding hunting on various refuges, particularly refuges in the same geographic areas. Fund For Animals, 448 F. Supp. 2d at 133.
Responding, the Service argued that, in preparing Environmental Assessments and in issuing the resulting Findings of No Significant Impact, the refuges identified and measured the adverse cumulative impact from hunting by considering the Migratory Bird Hunting Frameworks*fn3 and
through consultations conducted pursuant to Section 7 of the Endangered Species Act.*fn4 Id. at 133. The Service claimed that it was not required to analyze the cumulative impact of increased hunting in the NEPA-mandated Environmental Assessments because other, non-NEPA statutory schemes already required it to do so. Id.
Although an "agency may be exempt from conducting a NEPA environmental review if a statute provides, procedurally and substantively, for the functional equivalent of compliance with NEPA," Judge Urbina found that neither the Migratory Bird Hunting Frameworks nor the Endangered Species Act's Section 7 consultation process were the functional equivalents of NEPA's environmental review process. Id.
First, the Migratory Bird Hunting Frameworks only consider the effects of hunting migratory birds. A meaningful NEPA-cumulative impact analysis, Judge Urbina noted, must consider the effect of other forms of hunting on migratory birds and the overall environmental effect of increased migratory bird hunting. See id. at 134-35. Second, the Migratory Bird Hunting Frameworks' process does not provide for public comments in the same way that NEPA does. Id. at 135. Finally, Judge Urbina found that the record did not support the Service's contention that all refuge managers relied on the Migratory Bird Hunting Frameworks in deciding whether to open or expand hunting. Id. at 135-36.
As to the Endangered Species Act's Section 7 consultation process, Judge Urbina found that it also differed from NEPA in several ways. First, the Endangered Species Act only requires agencies to consider the cumulative impact of non-federal actions, while NEPA requires agencies to consider the cumulative impact of all actions. Id. at 136. Second, the Act fails to provide for public comment in the same way that NEPA does. Id. Finally, the record did not support the Service's contention that refuge managers actually relied on the information gleaned from the Section 7 consultation in deciding whether to open or expand hunting. Id.
Nonetheless, despite finding that the contested final rules were promulgated in violation of NEPA, Judge Urbina held off on vacating the rules. Id. at 137 n.7. The Court instead granted the Fish and Wildlife Service additional time to complete a new environmental analysis. [Doc. 94 at 2.]
C. The Service's Response to Judge Urbina's Order
1. The Service's Decision to Conduct a Bottom-Up Cumulative Impact Analysis
In October 2006 the Fish and Wildlife Service circulated a draft guidance memorandum to national and regional managers. The draft suggested that each affected refuge conduct a cumulative impact analysis and include those findings in a revised Environmental Assessment-a bottom-up approach to measuring the overall cumulative impact of hunting. See [AR 71157.] Under this analysis, refuges would first consider the impact of hunting upon their respective locations. After assembling these analyses, the Fish and Wildlife Service would make regional and national analyses of the cumulative impact of hunting.
Some Service employees questioned whether this bottom-up approach joined to a regional and national overview would adequately satisfy NEPA and Judge Urbina's order.*fn5 In response, other Fish and Wildlife Service employees argued that a cumulative impact analyses from the bottom up (refuge level) would better reflect the impact of hunting than from the top down (national level).*fn6
Despite some dissension among employees, in January 2007 Kenneth Stansell, the Acting Deputy Director of the Fish and Wildlife Service, adopted the bottom-up approach and issued a final guidance memorandum to all seven Regional Directors. [AR 67493.] The Stansell Guidance directed each refuge that had opened or expanded hunting to amend their Environmental Assessment to include a new cumulative impact section. According to Deputy Director Stansell, this approach was the best way to "address the issues identified by the court" and comply with NEPA. [AR 67493.]
Stansell placed the primary responsibility for conducting the cumulative impact analyses and crafting NEPA-compliant documents on the individual refuges. The Stansell Guidance instructed the supervising field managers to "amend or completely rewrite the existing [Environmental Assessment] to include a cumulative impacts analysis." [AR 67499.] The Stansell Guidance also required regional- and Washington-level input: the regional offices were given review, oversight, and quality control responsibilities over the refuges within their region. Specifically, the regional offices were instructed to "[r]review the proposed hunting package from a multi-state or flyway perspective, [and identify] apparent gaps in wider-scale analyses and if needed, amend each field station's [Environmental Assessment] to discuss the cumulative impacts of the proposed hunt from this larger geographical context." [AR 67500.] Finally, the Washington Office was tasked with reviewing the "proposed hunts or combination thereof" from a nationwide perspective. [AR 67500.]
The Stansell Guidance instructed each refuge to draft an Environmental Assessment that would describe proposed hunting in sufficient detail to provide the decision-maker with a good understanding of the past, present, and future impacts to the environment and other recreational activities to make an informed decision. If this proposed action is found to significantly affect the quality of the human environment, an [Environmental Impact Statement] is required. If a negative finding is made, a Finding of No Significant Impact . . . is prepared and signed. . . . Upon the revision of an existing [Environmental Assessment] . . . the public must be ...