[00:00:06] Speaker 00:
Timothy Mayo, Ken Nelson for the Appellants, Michael T. Reynolds in his official capacity as Acting Director of the U.S.

[00:00:14] Speaker 00:
National Park Services at all, Mr. Glittenstein for the Appellant, Mrs. Narone for the Federal Appellees, Mr. Peterson for the Interveneer Appellees.

[00:00:36] Speaker 04:
Good morning.

[00:00:37] Speaker 04:
The sole issue now on appeal involves the government's compliance with the National Grantful Policy Act in connection with its annual decisions as to whether and on what terms to authorize hunting of elk in the Grand Teton National Park.

[00:00:54] Speaker 04:
NEPA, if I can use the acronym with the court's permission, requires that the statutory directive to address impacts be considered

[00:01:03] Speaker 04:
to the fullest extent possible.

[00:01:05] Speaker 04:
And in this court's seminal decision in Calvert-Cliffs, the court defined that as demanding that environmental issues be considered at every important stage of the decision-making process concerning a particular action, at every stage where the overall balancing of environmental and non-environmental factors is appropriate, and where alterations might be made in the proposed action to minimize environmental costs.

[00:01:29] Speaker 04:
In this case, there's no dispute that

[00:01:32] Speaker 04:
The National Park Service not only does but by statutory command must make discretionary decisions every year as to whether and on what terms to authorize hunting of elk in the Grand Teton National Park.

[00:01:47] Speaker 04:
Of course, everyone recognizes that ordinarily there is no hunting, recreational hunting, which essentially is what this amounts to in a national park.

[00:01:56] Speaker 04:
But there was, in fact, built into the Grand Teton statute.

[00:01:59] Speaker 04:
There is no dispute.

[00:02:00] Speaker 04:
and authorization for the National Park Service to make what the Park Service has acknowledged are discretionary decisions.

[00:02:08] Speaker 04:
The Park Service has acknowledged that its determination of whether to authorize hunting is discretionary.

[00:02:17] Speaker 04:
Page 622 of the Joint Appendix specifically says it is not mandatory and that they must make a new decision every single year.

[00:02:25] Speaker 04:
In fact, even the 2007 plan and underlying programmatic EIS

[00:02:30] Speaker 04:
acknowledge repeatedly, and these are just a couple of the places in the joint appendix where they say that they can only allow hunting when it is quote unquote necessary as determined in any particular year, a joint appendix 244, 633, 634,

[00:02:47] Speaker 04:
642, 678, page 259.

[00:02:52] Speaker 04:
And so they do make these determinations every single year and they are discretionary.

[00:02:56] Speaker 04:
And on some level, I think the question for the court is not why should they do needful review, but to turn it around to some degree,

[00:03:05] Speaker 04:
Why shouldn't they do NEPA review when they admit they're making new decisions every single year and they do in fact bring some level of analysis and expertise to bear when they decide how many elk will be killed, where they will be killed, what conditions will be placed upon the hunt, and a host of other circumstances which in fact arise from year to year.

[00:03:26] Speaker 03:
Now, they did in the 2007 plan address this hunting and its environmental impact.

[00:03:35] Speaker 03:
And why don't you have the burden of showing that there's something significant that has changed in the environmental consequences of the hunting to necessitate a new NEPA?

[00:03:49] Speaker 03:
It's not where they have to address it at all.

[00:03:52] Speaker 03:
Their position, as you know, is that they did address it.

[00:03:56] Speaker 03:
these logistical decisions they make each year don't implicate new environmental consequences.

[00:04:02] Speaker 03:
Do you have an answer to that?

[00:04:04] Speaker 04:
Yes, Your Honor.

[00:04:05] Speaker 04:
As you know, one of our answers is that direction not carrying out the 2007 plan as they represented to the court and as they said they would.

[00:04:14] Speaker 03:
As to hunting, they're not carrying it out?

[00:04:15] Speaker 04:
Well, I think the hunting was part and parcel of the overall programmatic action.

[00:04:19] Speaker 03:
No, but what has changed as to the hunting and the environmental consequences of the hunting?

[00:04:24] Speaker 04:
Well, I think there have been, and every year there are changes made, both in terms of exactly how they authorize hunting, as well as some of the impacts that have come to the fore.

[00:04:35] Speaker 04:
But I do also want to come back to the point that... Can I freeze you there for a second, though?

[00:04:39] Speaker 03:
With apologies, and I'll let you get back to your point.

[00:04:41] Speaker 03:
Yes, sure.

[00:04:41] Speaker 03:
As to those things, where and the consequences of the hunt, do you allege that those have

[00:04:49] Speaker 03:
unforeseen, unconsidered environmental consequences by themselves?

[00:04:54] Speaker 04:
I think so, Your Honor.

[00:04:55] Speaker 04:
For example, one unforeseen consequence was the killing of a grizzly bear, which occurred notwithstanding the fact that the plan and the EIS specifically said that they did not believe that there would be any deaths of grizzly bears.

[00:05:10] Speaker 04:
And in fact, as Your Honor

[00:05:12] Speaker 04:
knows from other parts of our case, which has since become moot the ESA part of the case, the endangered species act part of the case, they had to go back and increase the authorization for grizzly bear take because of that development.

[00:05:25] Speaker 03:
They were going to address that, but is there something else?

[00:05:27] Speaker 04:
So there is that development.

[00:05:28] Speaker 04:
In addition to that, they have done various things to address environmental impacts that have come to the fore.

[00:05:34] Speaker 04:
For example, we refer

[00:05:36] Speaker 04:
to, quote unquote, major changes that they've made in the hunt, one of which, for example, was to eliminate lead shot, which was an impact that was not specifically addressed in 2000 EIS.

[00:05:48] Speaker 04:
They implemented changes in how the hunt could actually be.

[00:05:53] Speaker 06:
Were they somehow bound by the prior decision not to make that change?

[00:06:01] Speaker 06:
I mean, obviously, they're going to be in a 15-year program.

[00:06:04] Speaker 06:
They're going to be mid-course corrections.

[00:06:10] Speaker 04:
That's got to be the case, right?

[00:06:12] Speaker 04:
I agree, Your Honor.

[00:06:12] Speaker 04:
And I think that's could I, if I could just sort of focus in on that, I think that helps answer both.

[00:06:17] Speaker 04:
that question and the question about what happens year to year.

[00:06:21] Speaker 04:
This gets to the whole concept, I think, of tiering under the NEPA implementing regulations.

[00:06:27] Speaker 04:
Addressed in Theodore Roosevelt, as you know, they're not bound.

[00:06:31] Speaker 04:
Absolutely.

[00:06:32] Speaker 04:
Assuming they're complying with the plan, which is a central part of our argument, that they're not.

[00:06:37] Speaker 04:
But even if you took the 2007 plan at face value, it doesn't foreclose

[00:06:42] Speaker 04:
the need to look at variations and modifications that are made from year to year.

[00:06:47] Speaker 04:
In fact, it specifically contemplates that those kinds of variations and modifications will be made.

[00:06:52] Speaker 04:
So argument is not that every time they look at a new hunting decision, assuming they were compliant with the 2007 plan, they have to revisit

[00:07:01] Speaker 04:
every element of this broad planning document.

[00:07:04] Speaker 04:
I completely agree with that, Your Honor, as a matter of conceptual NEPA compliance.

[00:07:09] Speaker 04:
But under the CEQ regulations implementing NEPA, as well as under the case law, and we think this is also clear from the Theodore Roosevelt case itself, that when they implement the plan,

[00:07:21] Speaker 04:
especially a broad plan which commits itself to adaptive management, has these very broad, amorphous kinds of parameters when they make new decisions, especially statutorily required decisions, that make exactly the kinds of variations that Your Honor is referring to, then some additional NEPA review is called forward.

[00:07:40] Speaker 04:
Let me just be clear about what kind of NEPA review could be compliant in a scheme like that, because this is not, I don't think, any kind of draconian or dramatic suggestion I'm making.

[00:07:51] Speaker 04:
Many agencies, we refer to this in our reply brief, have a broad programmatic document, Migratory Bird Treaty Act, for example.

[00:07:59] Speaker 04:
It has a broad document where it talks about overall decision making on how many migratory birds will be killed each year.

[00:08:06] Speaker 04:
But every year, when it makes exactly these kinds of modifications and variations, how many will be killed, where that can happen, they prepare environmental assessments.

[00:08:14] Speaker 04:
on those individual decisions, which then address what are the impacts of those particular mitigation measures?

[00:08:22] Speaker 04:
Do they go far enough?

[00:08:23] Speaker 04:
Are there alternatives to those?

[00:08:26] Speaker 04:
And so even, I think, if the scheme were being implemented, it does not foreclose under the statute and the regulations.

[00:08:32] Speaker 04:
It certainly does not go under a non-possible additional NEPA review.

[00:08:36] Speaker 03:
And I think this is also a…

[00:08:38] Speaker 03:
I mean, it can't be that every change, even if referenced in a statute in a 15-year plan, requires this either tiered or supplemental NEPA that you want.

[00:08:48] Speaker 03:
If they went from 600 hundred one year to 585 the next year, that itself, I assume, would not require NEPA analysis.

[00:08:56] Speaker 03:
So what is your test for identifying which changes

[00:09:02] Speaker 03:
trigger an obligation when they've already addressed these environmental concerns of hunting in the original 2007 plan.

[00:09:11] Speaker 03:
What is the test for which changes require new analysis?

[00:09:16] Speaker 04:
Well, I think one critical part of the change, Your Honor, which is important in this case, it does not exist, I think, in any other case the government has relied upon, is the threshold obligation to make a decision every year as to whether hunting is even necessary.

[00:09:30] Speaker 04:
If you look at the statute, it refers to a recommendation on whether or not to have a hunting program for conserving the elk, which is supposed to be the objective, and then a decision every single year about whether that, as opposed to some other alternative.

[00:09:43] Speaker 03:
With respect, I think there are a lot of

[00:09:47] Speaker 03:
plans that agencies issue in the environmental area and elsewhere that will require decisions to be made annually, but we don't require every implementation decision that has to be made annually to be subject to NEPA review again.

[00:10:02] Speaker 03:
I had thought our test was that there had to be a significant impact, significant environmental consequences that were not previously addressed.

[00:10:11] Speaker 03:
Is that not the right test?

[00:10:12] Speaker 03:
And if it isn't, what is?

[00:10:13] Speaker 03:
And what's your authority?

[00:10:14] Speaker 04:
Well, I think the way to look at it, I mean, we do think there have been significant changes in terms of... Is that the right test?

[00:10:21] Speaker 04:
Well, I think that my view is that even if there's not a significant change, when there's a new decision that has to be made every year about whether or not this particular approach should be conducted.

[00:10:31] Speaker 04:
And in fact, in terms of changes, it could be changes in justification for the HUD.

[00:10:36] Speaker 04:
So for example, Your Honor,

[00:10:37] Speaker 04:
and try to be more responsive to your question, here is acknowledgment that the state of Wyoming has now hit its 11,000 population target.

[00:10:46] Speaker 04:
When the plan was issued, they said that the major effort or one of the major objectives was to get down to an 11,000 population number, and the hunt was part and parcel of getting down to that number.

[00:10:58] Speaker 04:
Well, now they admit that they've reached the number 11,000.

[00:11:00] Speaker 04:
And we have a statute which, on its face, says that you have to determine whether or not there is a need for a hunt in any particular year.

[00:11:08] Speaker 04:
And we have a park service saying, in so many words, our desire is to regulate naturally in a park as much as we can.

[00:11:14] Speaker 04:
So in answer to your question, I think there have been impacts, like grizzly bear impact and acknowledging lead shot as a problem and other things.

[00:11:21] Speaker 04:
But there's also a change in terms of whether or not the justification

[00:11:24] Speaker 03:
I just want to get back to it because we have to decide a case based on legal rules that don't just apply to this one plan.

[00:11:31] Speaker 03:
So what is the test for when a change?

[00:11:35] Speaker 03:
How would you articulate that legal test in a way that would apply not just in this case but in future cases that involve long-term plans?

[00:11:44] Speaker 04:
I think the test involves a combination of are there changes in circumstances and facts that

[00:11:51] Speaker 04:
I address either impacts that vary from year to year, which I think is clear here, potentially significant and in fact what the agency itself called major changes in its regulatory scheme over time, as well as, importantly, the justification, the rationalization for that action from year to year.

[00:12:10] Speaker 02:
What about the part of the test not previously addressed?

[00:12:14] Speaker 02:
Correct, Your Honor, and I think- Well, you didn't say that.

[00:12:17] Speaker 02:
It's previously addressed.

[00:12:20] Speaker 02:
I mean, you're just using impacts, but there's discretionary decision-making that occurs, because your argument seems to be, in fact it was, when you started out.

[00:12:31] Speaker 02:
Why not?

[00:12:33] Speaker 02:
That's not the test.

[00:12:35] Speaker 02:
That can't be the test.

[00:12:37] Speaker 02:
Why not?

[00:12:38] Speaker 02:
What's to lose if they do it?

[00:12:40] Speaker 02:
Well, there's a lot to lose.

[00:12:41] Speaker 02:
Actually, the agency may say, we can't spend this time each year doing this.

[00:12:46] Speaker 02:
We've assessed it.

[00:12:47] Speaker 02:
We've assessed all of the underlying issues.

[00:12:50] Speaker 02:
We've given it our best shot.

[00:12:51] Speaker 02:
And now we're going to make discretionary decisions going forward.

[00:12:56] Speaker 04:
Well, I didn't mean to be overly flippant about the why not.

[00:12:58] Speaker 02:
No, you weren't being flippant, but it was a strong point.

[00:13:02] Speaker 02:
I kind of perked up.

[00:13:03] Speaker 02:
That was your point.

[00:13:05] Speaker 02:
Why not?

[00:13:06] Speaker 02:
What's the harm?

[00:13:07] Speaker 02:
Which is, you're correct.

[00:13:09] Speaker 02:
Why not?

[00:13:09] Speaker 02:
But that's not the test.

[00:13:11] Speaker 04:
Well, I agree, Your Honor.

[00:13:12] Speaker 04:
When I meant why not, I meant there was a new action every single year.

[00:13:15] Speaker 04:
Right.

[00:13:15] Speaker 04:
It's a discretionary decision.

[00:13:17] Speaker 04:
Right.

[00:13:17] Speaker 04:
It's site-specific decisions that could not and were not made when the programmatic EIS was issued, which dealt with this broad adaptive management framework.

[00:13:26] Speaker 04:
And so when I said why not, the question was really more in terms of what NEPA requires, which is analysis on every federal action which occurs that had not previously taken place.

[00:13:36] Speaker 04:
And I think part of the answer also is, again, I was trying to suggest that the tiering concept

[00:13:41] Speaker 04:
Even if you don't have what's considered to be a major new change, the concept behind hearing is that when you make more particularized decisions that were in the scope of the overall program, but were put off until a later time.

[00:13:54] Speaker 03:
But weren't analyzed.

[00:13:56] Speaker 04:
To be analyzed.

[00:13:57] Speaker 04:
And I think that's what the programmatic EIS committed the agency to doing.

[00:14:01] Speaker 04:
It said we were going to have these new decisions when necessary every year.

[00:14:05] Speaker 04:
And so we think there have been changes, and they recognize that there would have to be a new justification based upon circumstances as they evolved.

[00:14:14] Speaker 04:
And again, I think going to this core question about even the rationale for the hunt, the 11,000 population target has been met.

[00:14:22] Speaker 03:
So the question in any year is... Well, they say the gender distribution isn't what they wanted.

[00:14:25] Speaker 04:
Well, that was an initial recommendation.

[00:14:26] Speaker 04:
If you look at the underlying programmatic EIS,

[00:14:29] Speaker 04:
They said our initial recommendation was the 35 to 100 ratio.

[00:14:33] Speaker 04:
Well, this is exactly the kind of question, notwithstanding the fact that we've met the overall population objective, that we still need a hunt as compared to other ways of regulating.

[00:14:42] Speaker 04:
The other thing I would raise in this connection is, ironically enough, the recent grizzly bear delisting raises the question about whether or not natural regulation would be a more effective approach consistent with the purposes of the national park system.

[00:14:56] Speaker 06:
In your brief, you seem to focus on the fact that the amount of supplemental feeding going on was at the high end of what was anticipated at the time of the original EIS, which I think is true.

[00:15:12] Speaker 06:
But the district court found, and I didn't see your brief responding to this, that there's no indication in the record that the fact that a larger herd segment is wintering in the refuge has had a spillover effect on the environmental impacts of elk hunting in the park.

[00:15:30] Speaker 06:
That would seem to be central.

[00:15:31] Speaker 06:
In other words, does that development or non-development, if you want to characterize it, change the

[00:15:42] Speaker 06:
valuation of environmental impact of the hunting itself?

[00:15:47] Speaker 04:
I think it does, Your Honor, because part of the rationale for the hunting

[00:15:51] Speaker 04:
was that they wanted to reduce the population, and the population was then going over to the refuge.

[00:15:58] Speaker 04:
And the fact that they haven't implemented that part of the plan is used as a justification for continuing hunting.

[00:16:04] Speaker 04:
So it's a continuation of an activity that they said to this court quite clearly they were going to change the dynamic.

[00:16:10] Speaker 04:
There's also a flip side of that.

[00:16:11] Speaker 03:
Is the number of elk hunted actually gone down, even as the feeding hasn't?

[00:16:15] Speaker 04:
Well, and that calls into question the entire rationale behind the plan.

[00:16:18] Speaker 03:
No, but I'm just asking as a factual matter.

[00:16:20] Speaker 03:
I think as a factual matter, they have allowed less hunting.

[00:16:22] Speaker 03:
That's correct.

[00:16:23] Speaker 03:
Which would have been what one would have hoped from feeding reductions to have happened.

[00:16:28] Speaker 03:
So the hunting impacts have gone down now, withstanding the fact that the feeding has not.

[00:16:33] Speaker 04:
Well, the number of elk killed have gone down somewhat.

[00:16:36] Speaker 04:
Although the last couple of years, it's remained somewhat stable.

[00:16:38] Speaker 04:
That's correct, Your Honor.

[00:16:40] Speaker 04:
I mean, the impacts overall continue to be substantial in terms of other users and impacts on other wildlife.

[00:16:47] Speaker 06:
I see my time is up.

[00:16:53] Speaker 04:
Well, the hunting has declined.

[00:16:54] Speaker 04:
If I could make one other point about the relationship in answer to Judge Williams' question, because it does also raise the question about the impact of the hunt on the refuge itself.

[00:17:05] Speaker 04:
Because in various places in the record, the Park Service acknowledged that if you reduced the amount of hunting, you might actually keep more elk in the park.

[00:17:16] Speaker 04:
And you would have less elk go to the refuge, which was the central objective of the plan.

[00:17:21] Speaker 04:
And the fact that they're not meeting the objective in the plan in order to reduce the harmful concentration of elk, I think reinforces the fact that this was all seen as a overall dynamic framework that they're clearly not implementing, and itself warrants some additional deeper review.

[00:17:38] Speaker 04:
So in that respect also, we think there's been a significant change that would warrant a supplemental EIS.

[00:17:44] Speaker 04:
I don't know if there are questions.

[00:17:45] Speaker 04:
Thank you.

[00:17:59] Speaker 01:
May it please the court.

[00:18:00] Speaker 01:
Good morning, your honor.

[00:18:01] Speaker 01:
My name is Rachel Herron on behalf of the Federal Appellees.

[00:18:04] Speaker 01:
With me at counsel's table is Eric Peterson for Intervenor State of Wyoming and Anna Seidman for Intervenor Safari Club.

[00:18:11] Speaker 01:
If it's agreeable to your honors, I will use 12 of the 15 minutes that were allotted to the appellees.

[00:18:17] Speaker 01:
Wyoming will take the remaining three.

[00:18:19] Speaker 01:
Council for Safari Club will not present argument but is available should the court have any questions for the club in particular.

[00:18:27] Speaker 01:
As the appellant conceded, there is only one issue now live in this appeal, and that is whether the National Park Service satisfied NEPA when it applied previously selected management criteria to determine whether and how many deputized hunters would be authorized to remove elk from Grand Teton in a given year.

[00:18:46] Speaker 01:
The agency did satisfy NEPA.

[00:18:48] Speaker 01:
And if I could, I'd like to start by providing a little bit of context for the format and the procedure that the agency followed here.

[00:18:56] Speaker 01:
As this court has recognized, NEPA requires agency to take a hard look at the impacts of their decisions.

[00:19:04] Speaker 01:
But when it comes to a decision or an agency project that's going to have multiple stages,

[00:19:10] Speaker 01:
It leaves to the agency to decide whether it's going to look at all of the foreseeable impacts from those multiple stages in a single environmental analysis document, or whether it's instead going to create a broad document and then tier with a series of subsequent more specific documents.

[00:19:27] Speaker 01:
And the appellant has pointed out various scenarios in which agencies have chosen to do the tiering approach.

[00:19:34] Speaker 01:
But agencies also frequently choose to look at all of the steps in a single document, and there's nothing suspicious about that.

[00:19:42] Speaker 01:
For example, the court doesn't need to look any farther than

[00:19:45] Speaker 01:
its own decisions in Grunewald and in Davis, two cases that were cited in the briefs, which involved national park service projects to cull the number of deer in certain national parks.

[00:19:56] Speaker 01:
Both of those environmental impact statements looked at decisions that would take place over numerous years to bring the level of deer in these park properties down to certain levels.

[00:20:05] Speaker 03:
Well, I think what they would say is, look, we're two-thirds of the way into this 15-year plan here, and the central

[00:20:15] Speaker 03:
basis on which the plan was made and analyses were undertaken was that supplemental feeding would decrease.

[00:20:23] Speaker 03:
Not a hard and fast deadline for stopping it, but that was the trajectory, and that was the trajectory on which the environmental analyses were undertaken.

[00:20:31] Speaker 03:
And it just hasn't happened.

[00:20:35] Speaker 03:
And so when agencies choose to do these longer term plans, and maybe they choose at the front end to do their best job to analyze the impacts, but the central premise, the central predicate for the analysis just not only isn't happening, but feedings are going in the other direction, at what point does the agency at least have to stop and go,

[00:21:01] Speaker 03:
This isn't going as planned.

[00:21:04] Speaker 03:
We need to take a second look.

[00:21:06] Speaker 03:
What should the test be for that?

[00:21:09] Speaker 01:
So, Your Honor, I think that the test is the test that this Court articulated in Davis, which is that not every change requires a supplemental EIS, but, quote, only those changes that cause effects that are significantly different than what was already studied.

[00:21:22] Speaker 01:
And here, the question is whether the effects of the program that's being challenged

[00:21:28] Speaker 01:
the hunting decision in Grand Teton is having any significantly different effects.

[00:21:33] Speaker 01:
And I think Judge Williams pointed out that the district court found that whatever alleged changes are happening in the program on the refuge with regard to supplemental feeding isn't having demonstrable spillover effects.

[00:21:50] Speaker 01:
on the hunt itself.

[00:21:52] Speaker 01:
And in fact, the numbers of hunters authorized on the park every year is going down, such that the impacts from hunting, if anything, may be a bit less significant.

[00:22:03] Speaker 01:
Is the number of elk hunted also going down?

[00:22:06] Speaker 01:
The number of elk that are actually hunted varies from year to year.

[00:22:10] Speaker 01:
It usually turns out to be something around maybe 25% or a third.

[00:22:15] Speaker 01:
So as the overall number of hunters authorized is going down, that number is generally going down but not sort of in lockstep because in any given year, people may have more success.

[00:22:27] Speaker 03:
Well, this authorization of hunting each year turns on a determination of necessity.

[00:22:33] Speaker 03:
And I think their argument is that

[00:22:37] Speaker 03:
the necessity wouldn't be there but for the fact that the central feature of this plan has gone haywire.

[00:22:46] Speaker 03:
And so how can we determine that this hasn't had a significant impact, the increased feeding hasn't had a significant impact on your determinations that hunting is still necessary or hunting is still necessary at the level that it's continuing?

[00:23:07] Speaker 01:
Well, with respect, Your Honor, I think the question of necessity really goes to the substance and the policy of the decision rather than NEPA.

[00:23:16] Speaker 01:
The NEPA question is whether something about the supplemental feeding is causing the impacts of hunting to be different.

[00:23:23] Speaker 01:
With regard to whether there's a need for the hunt every year,

[00:23:26] Speaker 01:
the plaintiff or any other member of the public is free to bring a cause of action and say, hey, look, in light of all this other stuff that's going on, your necessity determination is arbitrary.

[00:23:36] Speaker 01:
It's capricious.

[00:23:36] Speaker 01:
It doesn't make sense.

[00:23:38] Speaker 01:
And in fact, the appellant did bring a cause of action regarding necessity for the hunt below, but didn't carry it over on appeal.

[00:23:48] Speaker 01:
I think when we're looking at NEPA, what matters is whether the impacts are different.

[00:23:52] Speaker 01:
And the appellant has simply not pointed out any impact from the hunt itself.

[00:23:56] Speaker 03:
Would different include being continued longer than anticipated?

[00:24:00] Speaker 03:
There's just some adverse environmental consequences and the fact that they're being continued longer for more years than would have been anticipated in 2007.

[00:24:10] Speaker 03:
Why doesn't that need to be looked at or how do we know that doesn't need to be looked at?

[00:24:15] Speaker 01:
Sure, so I think that

[00:24:17] Speaker 01:
In the scenario you posit, there could very well be a need for supplementation.

[00:24:22] Speaker 01:
But here, and I would point, Your Honors, to JA 285 and JA 565, which projects, which is 2007 EIS's projections of long-term, which is defined as 15 years plus out, hunting on the refuge.

[00:24:37] Speaker 01:
And it says that it expects, over the long term, authorization of 770 to about 950 hunters each year.

[00:24:46] Speaker 01:
So this is simply not a case in which the expectation was that this program was going to result in hunting tapering off to nothing.

[00:24:53] Speaker 01:
by the end of this plan.

[00:24:55] Speaker 01:
It expected that there would be an increase at the beginning, and then that would taper down, but taper down to about 750 plus.

[00:25:03] Speaker 01:
And in fact, hunting currently is occurring at about 650 plus.

[00:25:07] Speaker 01:
So it's simply not the case.

[00:25:10] Speaker 01:
that any changes in supplemental feed are causing hunting at a scale that wasn't anticipated in the EIS.

[00:25:17] Speaker 01:
Certainly, it's maybe contributing to hunting that's more than a pellet would like it to be, that's more than it might be if the numbers on the refuge were going down, but it's not more than the EIS considered, and that's the important question for NEPA.

[00:25:33] Speaker 02:
The decrease in feeding in and of itself is not the goal.

[00:25:39] Speaker 02:
Right.

[00:25:40] Speaker 02:
A decrease in feeding is not the goal of the plan.

[00:25:42] Speaker 01:
Sure, the long-term goal.

[00:25:43] Speaker 02:
I mean, it's interesting, the other side did not raise the feeding in his argument until the very end when asked, which was interesting in light of the briefing, because there is no challenge to the feeding.

[00:25:54] Speaker 01:
That's absolutely right, Your Honor.

[00:25:55] Speaker 02:
The fight here is over the hunt, and I think your argument is

[00:26:00] Speaker 02:
Our goal in the plan, we said some things about feeding, but our goal in the plan was to get the hunt numbers down and where we expect it to be.

[00:26:10] Speaker 02:
Am I understanding the record correctly?

[00:26:12] Speaker 01:
That's right, Your Honor.

[00:26:13] Speaker 02:
So the feed is this kind of interesting aside that's playing big, but I'm not getting how it's playing that importantly, because that's not their challenge.

[00:26:22] Speaker 02:
There's no arbitrary and capricious challenge.

[00:26:25] Speaker 02:
Here, they're not.

[00:26:26] Speaker 02:
Their fight is over the hunt, and the hunt numbers are down.

[00:26:29] Speaker 01:
I think that's right, Your Honor.

[00:26:30] Speaker 01:
That's the way we see the case.

[00:26:32] Speaker 01:
I mean, I think that there is, to the extent that there are concerns about what's going on on the refuge and the level of feed,

[00:26:41] Speaker 01:
challenge could be brought against the refuge or could say that the refuge needs to do additional NEPA analysis with regard to the amount of feeding that it's doing and in that kind of case there would be the refuge's participation, there would be a record demonstrating exactly what's going on over here, whereas here we have a case that's all about hunting, the record is all about hunting and

[00:27:02] Speaker 01:
there's been no demonstrated change in hunting that's going on.

[00:27:08] Speaker 01:
So I do agree that I think the sort of discussion of feed is really a bit tangential to the case that the plaintiff actually brought here.

[00:27:14] Speaker 02:
There's been a demonstrate change in hunting.

[00:27:17] Speaker 02:
The number of authorized hunts and the number of kills have gone down.

[00:27:20] Speaker 01:
I apologize.

[00:27:21] Speaker 01:
It's not that there's been no change.

[00:27:23] Speaker 02:
It's been pretty important for your case.

[00:27:26] Speaker 01:
Fair enough, Your Honor.

[00:27:27] Speaker 01:
It's not that there's been no change, it's that there's been no deviation from the trajectory that was expected.

[00:27:32] Speaker 06:
On the supplemental beading, my understanding is the EIS was inconclusive as to what the

[00:27:43] Speaker 06:
even what the range would be of supplemental feeding, and nothing that's happened.

[00:27:50] Speaker 06:
It may have been a surprise to a degree that it's toward the high end of what they expected, but there's no indication it's beyond the high end of what they expected.

[00:28:00] Speaker 06:
Is that correct?

[00:28:02] Speaker 01:
I think that it's certainly correct that the EIS didn't have a specific

[00:28:10] Speaker 01:
It didn't say hard and fast supplemental feeding is going to reach this number.

[00:28:13] Speaker 01:
It chose a phased approach where the amount of feeding would go down over time, hopefully, as the number of elk on the refuge went down over time.

[00:28:24] Speaker 01:
The alternative that was chosen here is different than other alternatives that were considered in the plan, where the agencies had proposed

[00:28:34] Speaker 01:
driving the number of elk down that are receiving supplemental feed down and trying to control the population in that way.

[00:28:41] Speaker 01:
That's another way of handling this.

[00:28:43] Speaker 01:
It's not the way that was ultimately chosen.

[00:28:46] Speaker 01:
And I do think that on this issue of supplemental feed, to the extent there's any concern that there's some

[00:28:52] Speaker 01:
relationship between supplemental feed and the effects of the hunt, I think it's important to keep in mind that the 2007 EIS does look at the effects of supplemental feed and does characterize exhaustively this idea that as you do have more feed, that is going to result in certain risks to the elk population.

[00:29:12] Speaker 01:
So it's not as if the agencies

[00:29:14] Speaker 01:
are unaware of what it potentially means for those numbers to be going up.

[00:29:19] Speaker 01:
But again, here when we're dealing with the hunt and when we're dealing with an agency, a challenge to an agency that only has control over the hunt, the discussion that's in the EIS on supplemental feed and the fact that the hunt numbers are as the 2007 EIS thought they would be really is a sufficient discussion of NEPA to satisfy NEPA.

[00:29:39] Speaker 01:
And for that reason, there's in our view no reason to require additional analysis at this time

[00:29:44] Speaker 03:
And just to clarify, the number of hunters has gone.

[00:29:48] Speaker 03:
Has the number of killed elk, elk killed by hunters gone down?

[00:29:54] Speaker 03:
It has generally gone down.

[00:29:56] Speaker 03:
And then just one last quick question.

[00:29:58] Speaker 03:
Do you dispute their claim that Munson were vacatures appropriate of the district court's ESA holding?

[00:30:05] Speaker 01:
We don't oppose vacature here.

[00:30:08] Speaker 01:
If Your Honor doesn't have any questions, I know I've gone a little over time, but I'd like to make sure that Wyoming gets its opportunity as well.

[00:30:14] Speaker 03:
We'll give them their time.

[00:30:15] Speaker 01:
Thank you.

[00:30:27] Speaker 05:
Good morning, Your Honor.

[00:30:29] Speaker 05:
Given Ms.

[00:30:29] Speaker 05:
Herron's thorough approach, I just want to make two brief points.

[00:30:33] Speaker 05:
Going back to the question of, I believe Judge, I should refer to it as the why not question.

[00:30:39] Speaker 05:
I would just direct the Court to Wyoming's brief, page 34, where this Court's own words explain the answer to the why not question, which is that, quote, NEPA's rule of reason does not demand rethinking of everything all the time.

[00:30:54] Speaker 05:
It would be absurd to require an EIS on every decision on the management of federal land.

[00:30:59] Speaker 05:
The courts cannot allow NEPA to be bloated and, indeed, enfeebled by pushing the logic of NEPA's requirements to ridiculous extremes.

[00:31:06] Speaker 05:
The second point, a minor one, is Mr. Glistenstein made a reference to the potential effect of the Grizzly delisting.

[00:31:12] Speaker 05:
Of course, that is not in front of this Court.

[00:31:14] Speaker 05:
Post-8's all the decision-making is irrelevant.

[00:31:17] Speaker 03:
And you don't dispute that monsoon wherever it gets you is appropriate either?

[00:31:20] Speaker 05:
Wyoming will follow DOJ on that, Your Honor.

[00:31:23] Speaker 05:
Thank you.

[00:31:26] Speaker 03:
Does Mr. Glitzentine have any time left?

[00:31:30] Speaker 03:
We'll give you two minutes.

[00:31:37] Speaker 04:
Just give some citations and one, I think, response that I didn't hear, and that is that the state's objective of 11,000 has been satisfied.

[00:31:47] Speaker 04:
And so even though we think the record does show increasing conflicts and the service itself has acknowledged that Joint Appendix page 744, they say we have and expect continuing conflicts with other park objectives by having to hunt.

[00:32:03] Speaker 04:
I think the most critical fact today is they have not given a justification for the continued hunt at all under the plan.

[00:32:11] Speaker 04:
And so if you've met the objective and the statute requires you to consider every single year whether or not there are alternatives, which could include natural regulation,

[00:32:20] Speaker 04:
then there is obviously a critical dimension to NEPA compliance which was not addressed in the plan.

[00:32:27] Speaker 04:
It could not have been because the plan provided that a hunt as well as other features of the plan would be contingent upon having to meet population objectives that have now been satisfied.

[00:32:36] Speaker 03:
Do you have the ability to just bring an arbitrary and capricious challenge to a hunt authorization as not necessary as opposed to a NEPA claim?

[00:32:44] Speaker 04:
Your Honor, those could be brought, however.

[00:32:48] Speaker 03:
That sounds like your argument is it's not necessary, because they've met their 11,000.

[00:32:52] Speaker 03:
They'll have their answers, no doubt.

[00:32:54] Speaker 03:
But that argument sounds different to me than a NEPA.

[00:32:59] Speaker 03:
Something's missing in the NEPA analysis.

[00:33:01] Speaker 04:
I don't think it is, because I think what the government and Wyoming have not responded to is that a critical aspect of NEPA compliance is the consideration of alternatives that could avoid adverse environmental impacts.

[00:33:11] Speaker 04:
So even if the hunt has leveled off on some level, even in their plan they admitted there were all kinds of adverse impacts from any hunt at a national park.

[00:33:20] Speaker 04:
Other visitors are impacted, wildlife like grizzlies is impacted, and the critical focus of NEPA compliance is alternatives consideration.

[00:33:28] Speaker 03:
Is it impacted more than the impact they anticipated in 2007?

[00:33:32] Speaker 04:
I think on some level, yes, that their own document, 744, acknowledges that, at least with Risley impacts and other major changes they had to make, there were increased impacts.

[00:33:41] Speaker 06:
But I guess the point I'm trying to leave... On supplemental feeding, didn't they consider the option of just cutting it off totally?

[00:33:50] Speaker 04:
They did consider the option of cutting off supplemental feeding, which obviously would have solved that particular issue.

[00:33:57] Speaker 06:
And then they found it more suitable to go for, I guess it's option four, which

[00:34:07] Speaker 06:
did not invoke such a solution.

[00:34:11] Speaker 06:
With the obvious probability that the supplemental feeding would continue and might continue without reduction.

[00:34:21] Speaker 04:
Your Honor, actually, if I could just give you the citation on that, page 682 of the appendix,

[00:34:26] Speaker 04:
The Park Service said the preferred alternative clearly states that the Fish and Wildlife Service intends to progressively reduce the use of supplemental feeding.

[00:34:32] Speaker 04:
This court, in oral argument, took the government at its word that this meant end supplemental feeding over the course of time.

[00:34:40] Speaker 04:
That was the centerpiece of the plan.

[00:34:41] Speaker 04:
The opposite has happened.

[00:34:43] Speaker 04:
We have more feeding on the refuge now than was occurred before.

[00:34:45] Speaker 02:
But that's not the challenge here.

[00:34:47] Speaker 02:
The challenge is to the hunt.

[00:34:49] Speaker 02:
And you have another way to challenge the supplemental feeding, and I'm not even sure it's this agency.

[00:34:56] Speaker 04:
Your Honor, I understand that concern.

[00:34:59] Speaker 04:
If you look at the plan, the supplemental feeding was made the core of the plan.

[00:35:05] Speaker 02:
It doesn't matter.

[00:35:06] Speaker 02:
If that's not the issue before us, and this is not the agency that can respond to that question, I understand that you feel strongly about it, but not strongly enough to raise it in your opening presentation until we raise the question.

[00:35:20] Speaker 02:
But that just confirmed for me, you understand, it's not before us, and this isn't the agency that can correct that.

[00:35:28] Speaker 04:
Well, if I could respond briefly to that, Your Honor, I think our race do heavily hit on it, and if I didn't respond to it... Well, I know, and it was a shock to me, even though I still would have had questions for it, it was a shock for me.

[00:35:39] Speaker 02:
You had nothing to say about it until questioned by one of my colleagues at the very end of your argument.

[00:35:44] Speaker 02:
If that's at the heart of what you mean to say, there's no way, you're a good counsel, there's no way you wouldn't raise it.

[00:35:50] Speaker 02:
Because you knew you can't hopefully go there, right?

[00:35:54] Speaker 02:
This is a hunt case.

[00:35:58] Speaker 04:
Your Honor, if I could just prevail with me for another moment.

[00:36:01] Speaker 04:
It's a hunt case, but I...

[00:36:04] Speaker 04:
should probably have raised it more in my opening.

[00:36:06] Speaker 04:
And that was a mistake on my part.

[00:36:08] Speaker 04:
But if I could attempt to respond, because it wasn't because we don't think it's important, I was trying to respond to the questions about what happens every year and the justification for the hunt.

[00:36:16] Speaker 04:
But Your Honor, the critical point is that relies on the plan.

[00:36:20] Speaker 04:
The plan's objective to get to 11,000 elk, in turn, was dependent upon reducing the number of elk on supplemental feed.

[00:36:28] Speaker 04:
These were all presented as coordinated parts of one program, one plan.

[00:36:32] Speaker 04:
And so I apologize if I did not adequately address that in my opening.

[00:36:37] Speaker 04:
I think our briefs do make it clear.

[00:36:38] Speaker 04:
And it wasn't because we don't think, I agree that hunting is the focus, but hunting was part and parcel of a coordinated plan that was presented as such.

[00:36:48] Speaker 04:
And that if you're not implementing the plan, and particularly if you've met your population target, even though the refuge numbers have gone up, I go back to the same crucial question is, why are we having a hunt?

[00:36:59] Speaker 04:
And NEPA is all about alternatives.

[00:37:00] Speaker 04:
Does this agency control the supplemental feeding?

[00:37:03] Speaker 04:
No, but it can make a decision about whether or not hunting should continue in light of the fact that the plan that was underlying the rationale for hunting.

[00:37:10] Speaker 02:
So this is kind of a third party action.

[00:37:12] Speaker 02:
You want them to make a decision on hunting, which will force the agencies that have the authority to control feeding to do something.

[00:37:18] Speaker 04:
Yeah.

[00:37:18] Speaker 04:
You're right.

[00:37:18] Speaker 04:
Could I just add to that?

[00:37:19] Speaker 04:
The Park Service issued the plan, too.

[00:37:21] Speaker 04:
The Park Service was a co-author of the plan.

[00:37:24] Speaker 02:
I understand.

[00:37:25] Speaker 04:
So they signed onto a plan when they said point blank repeatedly, the core of this is reducing supplemental feeding.

[00:37:32] Speaker 04:
Part and parcel of that is the hunt that we're going to do.

[00:37:35] Speaker 04:
And so the question then is if we're not doing the plan that the park service itself signed off on, why are we implementing a hunt which was contingent upon that as the central focus when that's not happening?

[00:37:47] Speaker 04:
So I apologize for not being as clear and direct on that issue, which I should have been at my opening.

[00:37:52] Speaker 04:
But it is an important part of our case, and we think the SAIS, supplement the EIS standard is satisfied here.

[00:37:58] Speaker 04:
Thank you.

[00:37:59] Speaker 03:
The case is submitted.