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Mayo v. Jarvis

United States District Court, District of Columbia

August 1, 2016

TIMOTHY MAYO, et al. Plaintiffs,
JONATHAN B. JARVIS, et al., Defendants, STATE OF WYOMING, SAFARI CLUB INTERNATIONAL, Intervenor-Defendants. Re Document Nos. 65, 66


          RUDOLPH CONTRERAS United States District Judge.

         Granting Defendants’ Motion to Alter or Amend the Judgment and Denying Plaintiffs’ Motion for Partial Reconsideration


         Plaintiffs in this case challenged several actions of the National Park Service (“NPS”) and the Fish and Wildlife Service (“FWS”) related to the management and conservation of the elk herd and grizzly bear population in the Grand Teton National Park (“the Park”). In a prior Memorandum Opinion, the Court granted in part and denied in part Plaintiffs’ motion for summary judgment, rejecting Plaintiffs’ claims that the agencies’ actions had violated the National Environmental Policy Act, the Grand Teton National Park Enabling Act, the National Parks Organic Act, and the Endangered Species Act. See Mayo v. Jarvis, ___ F.Supp.3d ___, Nos. 14-1751 & 15-0479, 2016 WL 1254213, at *8-39 (D.D.C. Mar. 29, 2016). The Court did grant summary judgment in Plaintiffs’ favor on one claim made by the plaintiffs in a related case, which the Court construed Plaintiffs to have incorporated by reference. Id. at *31 n.38. Now before the Court are Defendants’ and Plaintiffs’ respective motions to alter or amend the judgment, or for reconsideration, under Federal Rule of Civil Procedure 59(e). As explained below, the Court will grant Defendants’ motion and deny Plaintiffs’ motion.


         As the Court’s prior opinion explained in detail, this case involves two iconic species- the elk and the grizzly bear-and their habitat in the Park. See Mayo, 2016 WL 1254213, at *1- 6. When Congress created the Park, it provided that conservation of the elk should include a “controlled reduction” when necessary “for the purpose of proper management and protection of the elk.” 16 U.S.C. § 673c(a). The NPS and Wyoming’s Governor have annually approved a harvest of elk from the Park, and in 2007 the NPS issued a joint plan with the FWS (which manages the abutting National Elk Refuge) for the management of the bison and elk herds that migrate across the Park, the Refuge, and nearby federal, state, and private lands. That plan called for continuing the elk reduction program, through an annual hunt.

         Because the plan was anticipated to have certain effects on the grizzly bear, a species listed as threatened under the Endangered Species Act (“ESA”), the NPS consulted with the FWS concerning those effects. After a species is listed as endangered or threatened, Section 7 of the ESA requires every federal agency, in consultation with the Secretary of the Interior, to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). As part of its formal consultation, the FWS issues what is called a “biological opinion” (or “BiOp”) which explains whether the Service believes that the action will jeopardize the continued existence of the species. See 50 C.F.R. § 402.14(g)(4). The BiOp must “detail[] how the agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h)(2). If the FWS concludes that the action is unlikely to jeopardize the continued existence of the species, but is nonetheless likely to result in some “‘incidental take’” of the species, “the BiOp must set forth an Incidental Take Statement, which specifies the permissible amount or extent of this impact on the species.” Oceana, Inc. v. Pritzker, 125 F.Supp.3d 232, 237 (D.D.C. 2015) (internal quotation marks omitted); see also 16 U.S.C. § 1536(b)(4)(B); 50 C.F.R. § 402.14(i)(1). To “take” an animal is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). ESA’s implementing regulations further define “harass” as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.

         The FWS issued a BiOp in 2007 concluding that the elk and bison management plan would not jeopardize the continued existence of the grizzly bear, and anticipating that one bear would be lethally “taken” in the Park during the fifteen-year implementation of the plan. See FWS-1691. The BiOp did not mention any other type of take that was anticipated to result from the plan. In 2013, after hunters killed a grizzly bear in the Park, the NPS reinitiated consultation with the FWS, and the FWS issued an addendum to the BiOp increasing the total anticipated incidental take in the Park to five bears. See FWS-1664. The addendum otherwise reiterated that the 2007 BiOp had “described all proposed actions and potential effects to the listed species.” See FWS-1662.

         Among other reasons, Plaintiffs argued that the FWS violated the ESA because the 2007 BiOp and 2013 Addendum failed to address whether the habituation of grizzly bears to hunter-caused elk viscera piles-which constitute a ready food source for the bears but which Plaintiffs claim disrupt the grizzly bears’ natural feeding habits-qualified as “take” through harassment. The Court rejected this contention. See Mayo, 2016 WL 1254213, at *36-37. The Court noted that the 2007 BiOp had expressly acknowledged that grizzly bears sought out elk gut piles left on the landscape during the annual elk hunt and had explained that such carcasses “are an especially important food source for bears in the spring and fall.” Id. at *36 (quoting FWS-1672). The Court also pointed out that other studies and reports, which the 2007 BiOp cited, contained numerous references to the fact that animal carcasses formed an important part of the grizzly bear’s diet. Id. The Court concluded that “[t]he agency’s silence in the face of this evidence implies that it did not consider these activities to rise to the level of ‘harassment, ’ as that term is used in the taking context.” Id.

         The Court went on to explain that “even if the 2007 BiOp and the 2013 Addendum left the agency’s conclusion implicit, the agency’s response to a letter [Plaintiffs] submitted indicating [their] intent to sue for violations of the ESA made the connection explicit.” Id. at *37. The Court rejected Plaintiffs’ claim that the letter constituted a post hoc rationalization. Id. In that letter, the NPS and the FWS asserted that the agencies “disagree that the seeking out of gut piles by grizzly bears is ‘take’ in the form of harassment” because, among other things, “[g]ut piles/remains from hunter-killed elk and bison . . . differ little from gut piles/remains from natural predation (such as by cougars or wolves) or death, except that they are the result of human versus natural processes.” NPS-6861. The Court found that the response, “which sets forth the agency’s own rationale for its conclusion, cannot be characterized as a post hoc rationalization.” Mayo, 2016 WL 1254213, at *37. In addition, the Court found that the record evidence Plaintiffs claimed supported their argument that attraction to the gut piles constituted take either aligned with “the agency’s determination that feeding on gut piles is not unusual or disruptive to the grizzly bear” or consisted of “anecdotal, unsupported evidence from laypeople” that was not the sort of “‘best scientific and commercial data available’ that the FWS and NPS are required to rely on when consulting on the ESA.” Id. (quoting 16 U.S.C. § 1536).

         The Court did grant summary judgment in plaintiffs’ favor on one claim-made by the plaintiffs in a related case, Sierra Club v. Jewell, No. 15-0479-which alleged that the FWS violated the ESA by failing to consider the impact of other incidental take of grizzly bears that had been authorized in the Greater Yellowstone Ecosystem when it analyzed the effects of the elk hunt on the grizzly bear population. Id. at *31-35. The Court construed Plaintiffs in this case to have incorporated that argument by reference. Id. at *31 n.38.

         Plaintiffs have now moved for reconsideration of the Court’s harassment determination, arguing that the Court should not have considered the joint agency letter and that, without the letter, the Court could not properly conclude that the FWS adequately considered the harassment issue.[1] See generally Pls.’ Mot. for Partial Recon. (“Pls.’ Mot.”), ECF No. 66. Separately, Defendants move to alter or amend the judgment on the ground that the Court erroneously concluded that Plaintiffs here raised the one prevailing claim made by the plaintiffs in Sierra Club v. Jewell. See generally Defs.’ Mot. to Alter or Amend J. (“Defs.’ Mot.”), ECF No. 65.

         III. ANALYSIS

         Both parties move to alter or amend the judgment, or for reconsideration, under Federal Rule of Civil Procedure 59(e). Granting a Rule 59(e) motion “‘is discretionary’ and need not be granted unless the district court finds that there is an ‘intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Firestone v. Firestone, 76 ...

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