UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY MAYO, et al. :
:
Plaintiffs, : Civil Action No.: 14-1751 (RC)
:
v. : Re Document Nos.: 65, 66
:
JONATHAN B. JARVIS, et al., :
:
Defendants, :
:
STATE OF WYOMING, :
SAFARI CLUB INTERNATIONAL, :
:
Intervenor-Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO ALTER OR AMEND THE JUDGMENT AND DENYING
PLAINTIFFS’ MOTION FOR PARTIAL RECONSIDERATION
I. INTRODUCTION
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.
II. FACTUAL BACKGROUND
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
2
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
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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
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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
1
Intervenor the State of Wyoming has filed a notice joining Defendants’ opposition, and
Intervenor Safari Club International has filed its own opposition adopting Defendants’
opposition and raising additional arguments. See State of Wyo. Resp. to Pls.’ Mot., ECF No. 69;
Safari Club Int’l’s Opp’n to Pls.’ Mot. Part. Recon. (“Safari Club Opp’n”), ECF No. 70.
5
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Nat’l Trust v. Dep’t of
State, 834 F. Supp. 453, 455 (D.D.C. 1993)).
A. Plaintiffs’ Motion for Partial Reconsideration
In their motion, Plaintiffs contend that the Court “does not appear to have found the
FWS’s ‘silence’ in the Addendum a sufficient basis alone for holding that the FWS adequately
considered the harassment issue,” Pl.’s Mot. at 3, and argue that the Court’s reliance on the FWS
and NPS post-decision letter was clear error for various reasons, id. at 3–10. Plaintiffs misread
the Court’s decision, however. The FWS’s 2007 BiOp and 2013 Addendum, on their own terms,
indicate that the FWS did not believe that the presence of hunter-created elk guts in the Park
constitutes harassment under the ESA. That conclusion holds true even without considering the
post-decision letter. The FWS’s “reasonably . . . discern[able]” conclusion suffices to defeat
Plaintiffs’ arbitrary and capricious challenge. Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974).
As the Court’s Memorandum Opinion already explained, the 2007 BiOp explicitly
discussed the availability of elk viscera as a grizzly bear food source. Mayo, 2016 WL 1254213,
at *36. For example, the BiOp explained that grizzly bears in the Yellowstone Ecosystem “have
the highest percentage of meat consumption in their diet of any inland grizzly bear population.”
FWS-1672. The BiOp also explained that ungulates “are an especially important food source for
bears in the spring and fall” and that the “use of these carcasses” is “well documented.” FWS-
1672. It described carcasses as among the “high quality foods” available to the bears. FWS-
1682 (“Bears that are typically wary of humans will often tolerate people at close distances when
carcasses or other high quality foods are available.”). Indeed, in the section entitled “Effects of
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the Action,” the BiOp stated that the “[t]raditional early fall elk hunts” in nearby Bridger-Teton
National Forest, which take place in the fall like the Park hunt, “have created a reliable food
source for hyperphagous bears which take advantage of ungulate remains left by hunters.” 2
FWS-1687. Moreover, the 2013 Addendum stated that the 2007 BiOp had described all
proposed actions and potential effects to the listed species, and also reiterated that grizzly bears
“seek[] out gut piles left on the landscape during the ERP [Elk Reduction Program] on Park
lands.” FWS-1662. Finally, as the Court noted in its opinion, “the remainder of the record
which was before the agency and, in most instances, cited in some regard in the BiOp and
Amended BiOp, contains numerous references to animal carcasses as part of the grizzly bear’s
diet.” Mayo, 2016 WL 1254213, at *36.
A BiOp must include both a “summary of the information on which the opinion is based”
as well as a “detailed discussion of the effects of the action on listed species or critical habitat.”
50 C.F.R. § 402.14(h)(1)–(2). The BiOp’s references to both the increased availability of elk
viscera and those elk guts’ use as a high quality food source demonstrate that the FWS
considered the elk hunt’s effects on the grizzly bear, generally, and the effect of gut piles left by
hunters, specifically. In addition where, as here, the FWS concludes that the action is not likely
to jeopardize the continued existence of the listed species, the BiOp must also formulate “a
statement concerning incidental take” and specify “the amount or extent[] of such incidental
taking on the species.” 50 C.F.R. § 402.14(g)(7), (i)(1)(i). In its BiOp, the FWS noted that
harassment is a form of take, and set forth the definition of that term. See FWS-1690.
2
To be sure, the 2013 Addendum noted that the final elk and bison management plan and
accompanying Environmental Impact Statement only covered the Park and Elk Refuge, and
excluded discussion of the Bridger-Teton National Forest. See FWS-1662. But this reference
still makes clear that the FWS was aware of the existence of elk viscera left behind by hunters.
7
Nevertheless, despite acknowledging the fact that harassment can constitute take, the BiOp
limited its take statement to the lethal taking of grizzly bears. See FWS-1690–91.
Taken together, the BiOp thus establishes two things: (1) that the agency considered the
effect of hunter created elk viscera and found it to be, if anything, a neutral to positive one for
the grizzly bear; and (2) that the agency acknowledged the possibility that harassment of a
species “by annoying it to such an extent as to significantly disrupt normal behavior patterns,”
including “feeding,” could constitute take. FWS-1690. To be sure, the agency did not go on to
explicitly state outright that it did not find the existence of hunter-caused elk viscera to constitute
harassment. But the inference that reasonably can be discerned from the fact that the 2007 BiOp
acknowledged both that harassment is a possible type of take and that hunter-caused elk viscera
results from the elk hunt (a result noted in neutral to positive terms) is that the FWS did not
consider the elk viscera to significantly disrupt grizzly bears’ feeding patterns. As the Court
previously explained, the BiOp “implies that [the FWS] did not consider these activities to rise to
the level of ‘harassment,’ as that term is used in the taking context.” Mayo, 2016 WL 1254213,
at *36.
In arguing to the contrary, Plaintiffs rely on a series of cases standing for the proposition
that silence, alone, does not suffice to sustain an agency’s action. In this vein, the Court
recognizes some tension between two administrative law principles that might be read at odds
with one another. On the one hand, it is a basic principle of administrative law that a court “can
only look to [the agency’s] stated rationale,” and will not “sustain its action on some other basis
[the agency] did not mention.” Point Park Univ. v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006).
Where “a statute requires an agency to make a finding as a prerequisite to action, it must do so,”
Gerber v. Norton, 294 F.3d 173, 185 (D.C. Cir. 2002), and a court “will not transform” an
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agency’s “silence into an expression of its expertise,” Anacostia Riverkeeper, Inc. v. Jackson,
798 F. Supp. 2d 210, 241 (D.D.C. 2011). A Court “may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” Bowman Transp., Inc., 419 U.S. at 286.
On the other hand, however, a court “will uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.” Id. at 286. If “the necessary articulation of
[the] basis for administrative action can be discerned by reference to clearly relevant sources
other than a formal statement of reasons, [the court] will make the reference.” Miller v. Lehman,
801 F.2d 492, 497 (D.C. Cir. 1986) (internal quotation mark omitted) (quoting Envt’l Def. Fund,
Inc. v. EPA, 465 F.2d 528, 537 (D.C. Cir. 1972)). Courts “do not demand sterile formality.”
Envt’l Def. Fund, 465 F.2d at 537.
In this case, and unlike in Gerber, for example, the FWS was not silent on either of the
necessary considerations it is required to make. The FWS specifically discussed both the effects
of the action, and anticipated incidental take. And it also recognized that the prevalence of
hunter-created elk gut piles is one consequence of the Park elk hunt. Therefore, what the Court
previously, and inartfully, described as “silence” is more accurately described as a failure to
explicitly link the BiOp’s discussion of elk viscera to the agency’s take conclusion. But the
agency’s discussion of both considerations make obvious why the FWS does not consider that
activity to constitute harassment. For that reason, this case falls into the latter category of agency
explanations, where an agency’s path “may reasonably be discerned.” Bowman Transp., Inc.,
419 U.S. at 286. This is a case in which the “necessary articulation of [the] basis for
administrative action can be discerned by reference to clearly relevant sources other than a
formal statement of reasons.” Miller, 801 F.2d at 497.
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Perhaps this implicit reasoning skirts close to the line. 3 And the Court would be
confronted with a different question if evidence in the record indicated that the FWS failed to
address an apparent effect of the action altogether, or if record evidence suggested that an effect
discussed in the BiOp in fact posed a more problematic or different threat to the species than the
agency described. But, here, as the Court already explained in its prior opinion, the evidence
Plaintiffs cite to support their claim that hunter-produced gut piles have negative effects either
“aligns with” the agency’s determination that feeding on gut piles—even those incidentally
created by hunting—“is not unusual or disruptive to the grizzly bear,” or consists of purely
anecdotal layperson evidence which does not consist of the sort of “‘best scientific and
commercial data’” upon which the agency must rely. Mayo, 2016 WL 1254213, at *37 (quoting
16 U.S.C. § 1536). Because the Court can reasonably discern the agency’s reasoning on the
basis of the 2007 BiOp and 2013 Addendum, alone, summary judgment was properly granted in
Defendants’ favor.
The Court emphasizes that it no longer relies on the post-decision letter. Despite the
Defendants’ assertion that the Court has discretion to consider that letter as part of the “whole
record” or as extra-record information, the Court declines to do so. See Defs.’ Opp’n to Pls.’
Mot. Recon. at 7–8, ECF No. 68. When it rendered its prior decision, the Court was unaware
that Defendants had affirmatively agreed to remove the identical letter from the FWS certified
3
Or maybe not. In the Court’s view, requiring the FWS to either redundantly list each
effect of the action that the FWS believes does not rise to the level of take, or to anticipate any
and all effects that a putative plaintiff might later argue constitutes take, would place an onerous
burden on the agency. As Intervenor Safari Club International argues, many “minor activities do
not rise to the level of take.” See Safari Club Opp’n at 3. “Hunters, bikers, campers,
photographers, and other Park users all impact bear behavior slightly by causing noise or
introducing human scent.” Id. Yet, at least where there is nothing in the record to indicate
otherwise, it borders on the formalistic to require the FWS to explicitly state that all such minor
impacts do not constitute harassment or other forms of take.
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Administrative Record (although it remained in the NPS-bates stamped portion of the record),
after Plaintiff noted that the letter post-dated the FWS’s promulgation of the BiOp Addendum.
See Pls.’ Mot. at 4 (describing this history); see also Pls.’ Mot. Ex. A (Plaintiffs’ letter noting
that the letter was a “post-Addendum document”); Pls.’ Mot. Ex. B (Defendants’ response,
stating that “[t]he Service will remove from the Record the response letter”). The Court’s
analysis above renders consideration of the letter unnecessary. As a result, the Court need not
resolve Plaintiffs’ argument that Defendants waived any reliance on the letter by failing to
include it in the FWS-specific record or to cite to it in their summary judgment memoranda. 4
See Pls.’ Mot. at 3–4.
Nevertheless, in the event the issue arises in the D.C. Circuit on appeal, the Court notes
that it continues to believe that the letter does not constitute an improper post hoc rationalization.
The post hoc rationalization rule prohibits a court from upholding an agency’s decision based on
“rationalizations offered for the first time in litigation affidavits and arguments of counsel.”
Local 814, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen v. NLRB, 546 F.2d 989, 992
(D.C. Cir. 1976) (citations omitted). But it does not bar an agency from “further articulat[ing] . .
. its reasoning,” id., although any new articulation must be “merely explanatory of the original
record and should contain no new rationalizations,” Envt’l Def. Fund, Inc. v. Costle, 657 F.2d
275, 285 (D.C. Cir. 1981).
While Plaintiffs argue that the post hoc rationalization rule’s application is limited solely
to explanations an agency provides on remand, see Pls.’ Mot. at 8; Pls.’ Reply at 5–6, the D.C.
4
On March 22, 2016, the Court ordered the parties to supplement the Joint Appendix
with the letter, which they had identified in the Certified Administrative Record Indexes. See
Mar. 22, 2016 Minute Order. The Court did so because a pre-litigation letter Plaintiffs sent to
the NPS, which was included in the Joint Appendix, referenced that letter and described the
agencies’ further articulation of the FWS’s harassment determination. See NPS-7552.
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Circuit has never construed the rule so narrowly. Consider Population Institute v. McPherson, in
which the Circuit reviewed the Administrator of the United States Agency for International
Development’s decision to withhold earmarked funds for the United Nations Fund for Population
Activities (“UNFPA”). See 797 F.2d 1062, 1064 (D.C. Cir. 1986). The Administrator had
concluded that releasing those funds would violate a statutory provision prohibiting funding for
any organization that supports or participates in a program of coercive abortion or involuntary
sterilization. See id. After the district court rejected a putative grantee’s challenge to the
Administrator’s decision, the D.C. Circuit granted the plaintiffs’ motion for an injunction
pending appeal. Id. at 1067. The Circuit concluded that an injunction was warranted because
the Administrator seemed to have erroneously premised his decision on an interpretation that the
statute left him with no alternative but to withhold the funds, and had based his interpretation of
Congress’s intent on the view of “a single member of Congress.” Id.
Before the D.C. Circuit heard the case on the merits, however, “the Administrator issued
a statement affirming his earlier decision to withhold funds from UNFPA but examining the
statute with greater detail and in light of [the Circuit’s] decision granting the injunction.” Id. at
1068. Even though the case had not been remanded or otherwise returned to the agency, the
Circuit rejected the plaintiffs’ claim that the Administrator’s renewed statement—issued while
litigation was ongoing—was an impermissible post hoc rationalization. The Court emphasized
that the Circuit was “not confronted by a hypothetical explanation by appellate counsel of why
an agency might have done something,” but with the explanation of the “decisionmaker himself,”
who had “reconsidered the matter and arrived at the same result but expanded on his rationale.”
Id. at 1072 (emphasis added). Indeed, the D.C. Circuit emphasized that the Administrator’s
second determination “was made while litigation challenging the propriety of the
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Administrator’s determination was pending” before the Circuit. Id. at 1071. The same is true of
Appeal of Bolden, in which the D.C. Circuit considered the Office of Personnel Management’s
decision to exclude from a health care refund scheme those individuals enrolled in the relevant
benefit plan before a particular date. 848 F.2d 201, 202 (D.C. Cir. 1988). Although the plaintiffs
filed their lawsuit in 1985, the Court considered a 1986 OPM decisional memorandum—which
the Circuit emphasized was submitted “after the suit had commenced”—because OPM had
“previously considered the reasons given in its decisional [m]emorandum,” and that document
only served “to amplify the administrative record.” Id. at 207.
So too, here. The FWS and the NPS—the relevant decisionmakers themselves—
provided a more explicit, robust explanation of why they did not consider elk viscera caused by
hunting to constitute harassment. It would be one thing if the agency changed its explanation, or
if counsel fashioned an entirely new explanation for purposes of litigation. See Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 50 (1983); Costle, 657 F.2d at 275. But
where the agency decisionmaker merely expounds upon reasoning “obscured but implicit in the
administrative record,” that further articulation is not generally problematic. Appeal of Bolden,
848 F.2d at 207 (emphasis added) (quoting district court opinion). Here, as explained above, the
FWS discussed the existence and effect of hunter-caused elk viscera, and also considered
incidental take, including the possibility of take through harassment. All the post-decision letter
did is explicitly expand upon the conclusion that was already implicit in the original BiOp. 5
5
As a jurisdictional prerequisite, the ESA requires that a plaintiff give the FWS notice 60
days before bringing suit. See 16 U.S.C. § 1540(g)(2). Plaintiffs contend that reliance on an
agency’s response to a post-decision letter will have “the counterproductive effect of
encouraging the parties providing notice to file suit as soon as the period runs in order to avoid
having their notice treated as an opportunity for shoring up a decision previously made.” Pls.’
Mot. at 8 n.4; see also Pls.’ Reply at 5. This fear is unfounded. Plaintiffs’ proposition appears to
turn on the assumption that the Court’s consideration of the post-decision response letter here
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B. Defendants’ Motion to Alter or Amend the Judgment
Defendants also move to alter or amend the judgment, arguing that the Court erroneously
granted partial summary judgment to Plaintiffs on Count IV of their complaint. See generally
Defs.’ Mot. The Court granted the Sierra Club plaintiffs’ motion for summary judgment on the
ground that, when it made its “no jeopardy” finding, the FWS failed to consider and evaluate the
impact of other incidental take that had been authorized in the GYE since 2007. See Mayo, 2016
WL 1254213, at *31. The Court granted summary judgment to the plaintiffs in this case on that
ground as well, concluding that they had “incorporated Sierra Club’s arguments by reference.”
Id. at *31 n.38. Defendants point out, however, that Plaintiffs expressly did not incorporate by
reference the portion of the Sierra Club plaintiffs’ brief that made the specific argument that
prevailed. See Defs.’ Mot. at 3–4. Compare Mayo Pls.’ Mem. Supp. Mot. Summ. J. at 35–36,
ECF No. 35 (incorporating by reference only the arguments made on pages 21 through 30 in the
Sierra Club plaintiffs’ memorandum supporting their motion for summary judgment), with
Sierra Club Pls.’ Mem. Supp. Mot. Summ. J. at 14–21, ECF No. 26 (Case No. 15-cv-0479)
(making prevailing argument). Recognizing this error, Plaintiffs do not oppose the request. See
Pls.’ Resp. to Defs.’ Mot. to Alter or Amend the Judgment, ECF No. 67. Accordingly, the Court
finds that amending the judgment is necessary to “correct clear error,” and Defendants’ motion
implies that any response from the agency that is issued before a lawsuit is filed could be
considered by a court. That assumption is inaccurate. The relevant consideration is not when the
agency issues a more robust explanation, but what that explanation says. If that explanation
consists only of a “further articulation of [the agency’s] reasoning” it might be considered,
depending on the circumstances of the case. See Local 814, 546 F.2d at 992. Any attempt by the
FWS or the NPS to concoct an entirely new justification for the agency’s determination,
however, would likely be rejected as a post hoc rationalization—regardless of whether it was
issued before or after the plaintiffs filed suit. Here, the agencies’ joint response simply
reiterated, with a more explicit rationale, a conclusion that was already discernable from the
2007 BiOp and 2013 Addendum.
14
must be granted. Piper v. U.S. Dep’t of Justice, 312 F. Supp. 2d 17, 20 (D.D.C. 2004). In light
of the Court’s resolution of Plaintiffs’ motion for reconsideration, the Court will therefore enter
an amended order entering judgment on all counts in Defendants’ favor.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to alter or amend the judgment (ECF No.
65) is GRANTED and Plaintiffs’ motion for partial reconsideration (ECF No. 66) is DENIED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: August 1, 2016 RUDOLPH CONTRERAS
United States District Judge
15