NATHA

NI EL P. REED, et al. , Plaintiffs,

v. KEN SALAZ AR, in his official ca pacity as Secre tary of the Interior, et al. Def endants, CONFED ERATED SAL I SH & KO OTENAI TRI BES, Interve nor-De fenda

nt.

BL UE GOO SE AL L I ANCE, et al. , Plaintiffs,

v. KEN SALAZ AR, in his official ca pacity as Secre tary of the I nterior, et al. , Def endants, CONFED ERATED SAL I SH & KO OTENAI TRI BES, Interve nor-De fenda

nt. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08-2117 ( CKK)

Civil Action No. 09-640 ( CKK)

MEMORAN DUM OP INION (September

28, 2010) The a bove-c aptioned ca ses involve a c halleng e to an a nnual fundingag ree ment enter ed into between the U.S. Depar tment of Interior F ish & Wildli fe Ser vice ( “F WS ”) a

nd the Confeder ated Salish & Kootenai Tr ibes of the F lathead Re servation (the “CSKT”) f or the operation and manag ement of the National B ison Range Complex , a par t of the Na

tional Wi ldlifeRefug e Sy stem. I n the first ac tion, Pl aintiffs Nathaniel P. Reed, David S. W iseman, Jon

Malcolm, Marvin R. Kasc hke, Joseph P. M azzoni , Marvin L . Plenert, Robert C. Fie lds, Florenc e M. L arive riere , Delber

t Dee Palmer , and Public Employ ees f or Environmenta l Responsibil ity (collec tively , the “

Ree d Plaintiffs”) conte nd that the annua l fundingag ree ment violates the National Wildli fe Ref

ug e Sy stem Administration Act of 1966, as amended ( the “Ref ug e Ac t”), 16 U.S.C. §§ 668dd-668ee; the Indian Self-De termination and Educ ation Assistance A ct (“I SDEAA”) , 25 U.S.C. §§ 450 et seq. , as ame nded by the Tribal Self- Gover

nance Act of 1994, 25 U.S.C. §§ 458aa-hh; the F ree dom of Information Ac t (“F OIA”) , 5 U.S.C. § 552; and the Interg overnme ntal Personnel Ac t (“I PA”), 5 U.S.C. §§ 3371-76. The Ree d Plaintiffs also contend that De fenda

nts Ken Salazar a

nd Rowan W. Gould, sued in their offic ial capa cities as Secre tary of the I nterior a nd ActingDirec tor of F WS , respe ctively (collec tively , “De fenda

nts”) violated the National Environmental Policy Act (“NEPA”), 42 U .S.C. §§ 4321 et seq. , by failing to prepa re a n environmenta l impact statement or other documents re quired by

NEPA prior to enter ing a n agree ment with the CSKT. I n the sec ond action, Plaintiffs Blue Goose Allianc e, Don Redfea rn, Evely n Redfea rn, Will iam C. Reffalt, and Christine Enr ight- Reffa lt (collectively , the

“Blue GoosePlaintiffs”) also c ontend that the fundingag ree ment with the CSKT violates the Refug e Ac t, the I SDEAA, and the FOI A. The Blue GoosePlaintiffs also contend that Def endants fa iled to comply

with NEPA and the Enda ng ere d Species Ac t (“ESA”) , 16 U.S.C. §§ 1531-44. Plaintiffs in both actions (collec tively , “Plaintiffs”) se ek a r escission of the f unding ag ree ment. The Court g rante d the CSKT’s motion to i nterve ne as a defe ndant in these a ctions. Presently pendingbefor e the Court ar e cr oss-motions for summary judgme nt that have been f iled by the Plaintiffs, Defe ndants, and the CSKT as Interve nor-De fenda nt. For the rea sons 2explained below, the Court finds that Def endants fa iled to comply

with their obligations under NEPA befor e ente ringinto the annual fundingag ree ment with the CSKT to manag e the NB RC. Acc ording ly , the Court shall g rant Plaintiffs’ motions for summary judgme nt with respec t to their NEPA claims, deny

Def endants’ a

nd Interve nor-De fenda

nt’s motions for summary judgme nt with respec t to NEPA claims, and orde r that the a nnual fundingag ree ment be set a side. In light of this disposit ion of the Plaintiffs’ NEPA cla ims, the Court shall deny without prejudice the parties’ motions for summary judgme nt with respec t to their other cla ims. I. BACKG ROUND A. Statutory Background 1. The National Wi ldlife Refug e Sy stem Administration Act Orig inally

enac ted in 1966, the National Wildlife Refug e Sy stem Administration Act (“Ref ug e Ac t”) sets for

th the g uiding pr inciples and policies f or the a dminist ration and manag ement of the National Wildli fe Ref ug e Sy stem (“NWRS”). The Ref ug e Ac t desig nates the NWRS as all lands, waters, and inter ests manag ed by the Secr etar

y of the Interior “ for the

conser vation of fish and w ildlife, including spe cies that a re thre atene d with ext inction.” 16 U.S.C. § 668dd(a)(1) . As amende d in 1976, the Refug e Ac t states that the NWRS “shall be administered by

the Secr etar

y [of the I nterior] throug h the United States F ish and Wil dlife Service .” Id. ; see Pub. L . No. 94-223, 90 Stat. 199 (1976). Cong ress fur ther amended the Refug e Ac t in 1997, clarify ing that “[t] he mission of the Sy stem is to adminis ter a national network of

lands and waters for

the conse rvation, mana g ement, and where appropr iate, restoration of the fish, wildlife, and plant r esourc es and the ir habitats within the United States for the bene fit of pre sent and futur e g ener ations of Amer icans.” National Wildli fe Ref ug e Sy stem
3I mprovement Ac t of 1997 § 4, 16 U.S.C. § 668dd(a)( 2). The Re fug e Ac t states that “ea ch re fug e

shall be mana g ed to fulfill the mission of the Sy stem, as well as the specific purposes for which that ref ug e wa s established.” 16 U .S.C. § 668dd(a)(3) (A).

2. The Indian Self-De termination Education & Assistance Act Orig inally

enac ted in 1975, the Indian Self-De termination and Educ ation Assistance A ct (“I SDEAA”) was intende d to assure “ maxi mum I ndian par ticipation in the direction of educational as well as other Fe dera l service s to I ndian communities . . . .” 25 U.S.C. § 450a(a ), Pub. L . No. 93-638, 88 Stat. 2203 (1975). The Act author izes the Secreta ry of the Interior to enter into contrac ts with I ndian tribes to have them perf orm prog rams, func tions, services, or activities, including administrative func tions, that would otherwise be pe rfor med by DOI for the benef it of Indians. 25 U.S.C. § 450f(a) (1). In 1994, Congr ess passed the Tribal Self-G overna nce Act, which a

mended the I SDEAA and a uthorized the Secre tary

to enter into annua l funding ag ree ments to transfer

control of pr og rams, ser

vices, func tions, and activities that are of spec ial g eog raphic , historical, or c ultural signif icanc e to the par

ticipating tr ibe. 25 U.S.C. § 458cc(c ), Pub. L . No. 103-413 § 204, 108 Stat. 4250, 4272 (1994). A s amende d, the I SDEAA conta ins the following disclaimer: Nothing in t h i s s ection [25 U.S.C. § 458cc] is intended or shall be construed to expand or alter exis ting statutory authorities i n the S ecr etar y so as t o au t h o ri ze the Secre tary to enter i n t o any agree ment under subsection (b)( 2) of this section and section 458ee( c)( 1) of this title with r espec t to functions that are inhere ntly Fe dera l or wher e the statute establishing the exis ting prog ram does not authorize the ty pe of participation soug ht by the tribe: Provided, howeve r an Indian tribe or tribes need not be identified in the authorizing statute in order for a prog ram or element of a prog ram to be included in a c ompact under subsection (b)( 2) of this section. 25 U.S.C. § 458cc(k) . The I SDEAA re g ulations also clarify that this section excludes

4“inher ently Fe dera l functions” fr om the scope of permissible prog rams in an a nnual funding ag ree ment. See 25 C.F.R. § 1000.129.

3. The National Environmental Policy Act The National Environmental Policy Act is the “ba sic national cha rter f or protec tion of the environment,” 40 C.F.R. § 1500.1(a) , and it require s fede ral a g encie s to take a “ hard look” at the environmenta l conseque nces of their projec ts before taking action. 42 U.S.C. § 4332(C); Marsh v. Or. Natural Res. Council , 490 U.S. 360, 374 (1989). NEPA “ require s that ag encie s assess the environmenta l conseque nces of fede ral proje cts by

following cer

tain proce dures dur ing the decision-makingproce ss.” City of Alexandria v. Slater , 198 F.3d 862, 866 ( D.C. Cir. 1999). NEPA has twin aims. “F irst, it ‘places upon a n ag ency the obliga

tion to consider eve ry signific ant aspe ct of the e nvironmental impact of a proposed a ction.’” Baltimore Gas &Elec. Co. v. Natural Res. Def. Council, Inc. , 462 U.S. 87, 97 (1983) (quoting Vermont Y ankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. , 435 U.S. 519, 553 (1978)). “ Second, it ensure s that the ag ency

will inform the public that it has indeed c onsidered e nvironmental conc erns in its decisionmakingproce ss.” Id. Acc ording ly , NEPA’s mandate “is esse ntially proce dural.” Vermont Y

ankee , 435 U.S. at 558; N. Slope Borough v. Andrus , 642 F.2d 589, 599 ( D.C. Cir. 1980) (e x plaining that NEPA require ments are essentially proce dural a

nd a cour t should not substitut e its own policy

judgme nt for that of the ag ency ). “N EPA merely

prohibits uninformed—r ather

than unwise—a g ency

action.” Robertson v. Me thow Valley Citi zens Council , 490 U.S. 332, 351 (1989). “The major ‘a ction-for cing ’ provision of NEPA is the re quirement that ‘a ll ag encie s of the Fe dera l gove rnment’ pr epar e a de tailed environme ntal analy sis for ‘major F eder al ac tions

5signific antly aff ectingthe quality

of the human e nvironment.’” Found. on Econ. Trends v. Hec kler , 756 F.2d 143, 146 ( D.C. Cir. 1985) (quoting 42 U.S.C. § 4332(C); S. R ep. No. 91- 296, 91st Cong., 1st Sess. 19 (1969)). T his analy sis is called an Environme ntal I mpact Statement (“EI S”). See 42 U.S.C. § 4332(C). An EI S is notrequire d if the ag ency makes a deter mination based on a more limit ed document, an E nvironmental Assessment (“ EA”) , that the proposed a ction would not have a signific ant impact on the e nvironment. Sierra Club v. Mainella , 459 F. Supp. 2d 76, 81 (D.D .C. 2006) (c iting 40 C.F.R. §§ 1501.4, 1508.13). “ The EA is to be a ‘conc ise public document’ that ‘[b] riefly provide[s] sufficie nt evidence and ana ly sis for deter mining whe ther to pre pare an [EI S] .’” Dep’ t of Tr ansp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (quoting40 C.F.R. § 1508.9(a) ). “I f, pursua

nt to the EA, an a g ency

deter mines that an EI S is not require d under applicable [reg ulations issued by the Council on Environmental Qua lity ], i t must i ssue a ‘ finding of no sig nificant impac t’ (F ONSI ), which br iefly prese nts the rea sons why the proposed a g ency action will not have a

signific ant impact on the human e nvironment.” Id. at 757-58 (c iting 40 C.F.R. §§ 1501.4(e) , 1508.13). Of pa rticular sig nificanc e to the pre sent litigation, an a g ency need not pr epar e an E I S or

even a n EA if it finds that its proposed ac tion is subj ect to a “ cate g orica l exclusi on.” A “categ orica l exclusi on” is define d as:

a cate g ory of actions wh i ch do not individually or cumulatively have a signific ant eff ect on the human environment and which have been found to have no such eff ect in proce dures adopted by a Fe dera l ag ency in implementation of these regulations (§ 1507.3) and for which, there fore , neither an environmenta l assessment nor an environmenta l impact statement is require d. An ag ency may decide in its proce dures or otherwise, to prepa

re environmenta l assessments for the rea sons stated in § 1508.9 even though it is not require d to do so. Any proce dures under this section shall
6provide for ext raor dinary circ umstances in which a normally excluded action may

have a signific ant environme ntal eff ect. 40 C.F.R. § 1508.4. The ter ms within t his definition are de fined broa dly . A “c umulative impact” is def

ined as “ the impact on the e nvironment which re sults from the incre mental impact of the a ction when a dded to other pa st, present, a nd rea sonably

fore seea ble future actions reg ardle ss of what a g ency . . . or per son undertake s such other a ctions.” Id. § 1508.7. The ter m “ef fec ts” not only

includes direc t effe cts (those “ cause d by the ac tion and occur

at the same time and plac e”) , but also indirect ef fec ts (those “c aused by

the ac tion and are later in time or f arthe r

remove d in distance, but ar e still reasona bly fore seea ble”)

. Id. § 1508.8. Moreove r, the ty pe of “ef fec ts” that are contemplated by this definition include: ecolog ical (suc h as the e ffe cts on natura l resourc es and on the components, structure s, and func tioning of a ffe cted e cosy stems), ae sthetic, historic, cultural, economic, soc ial, or hea lth, whether dire ct, indirec t, or cumulative. Ef fec ts may also include those r esulting f rom ac tions which may

have both be nefic ial and detrimental e ffe cts, eve n if on balanc e the a g ency believes that the eff

ect will be benef icial. Id. When an ag ency

finds that its proposed ac tion falls within a categ orica l exclusi on, the ag ency must then determine whe ther ther e ar e any “[e]x traordina

ry circ umstances” that

never theless re quire the a g ency to perfor m an environme ntal evaluation. 40 C.F.R. § 1508.4; 43 C.F.R. § 46.215. Pursuant to regulations promulgated by the Depa rtment of the I

nterior ( “DOI ”), extraordinary

circ umstances e x ist for individual actions within categ orica l exclusi ons that may meet any of the followingcriter ia: (a) Have signific ant impacts on public hea lth or safe ty
. (b) Ha ve sig nificant impac ts on . . . park, re cre ation or re fug e lands . . . .

7(c) Have highly controve rsial environmenta l eff ects or involve unresolved conflicts conce rningalternative uses of available r esourc es . . . . (d) Have highly uncer

tain and potentially signific ant env iro nme nta l e f f ects or involve unique or unknown e nvironmental risks. (e) Establish a prec edent for future action or repr esent a decision in pr inciple about future a ctions with potentially signific ant environme ntal eff ects. (f) Have a direc t relationship to other actions with individually insignifica nt but cumulatively

signific ant environme ntal eff ects.

. . . (h) Have significa

nt impacts on speci es l i s t ed, or proposed to be li sted, on the L ist of Endang ere d or Threa

tened Species or have signif i ca n t impacts on desig nated Critical Habitat for

these spec ies.

. . . (l) C ontribute to the i ntroduction, continued existence, or spr ead of nox ious weeds or non-native invasive specie s known to occur in the are a or acti ons that may promote the introduction, g rowth, or e x pansion of the r ang e of suc h specie s . . . . Id. § 46.215. 1 Ag encie s must comply

with the proce dural re quirements of N EPA, and the de cision to fore g o production of a

n EI S or EA in favor

of a c ateg orica l exclusi on is subject to judicial review under the arbitra

ry and ca pricious standar d of re view. Nat’l Tr ust for Hist oric Pres. v. D ole , 828 F.2d 776, 781 ( D.C. Cir. 1987); Back Country Horsemen of Am . v. Johanns , 424 F. Supp. 2d 89, 98 (D.D.C. 2006).

These r egulations, which codified pr ocedur es in the DOI ’s Depa rtmental Manua l, 1 beca me ef fec tive in October

2008. See 73 Fe d. Reg . 61292 (Oc t. 15, 2008). Prior to that time, DOI policy require d FWS to review a ny action that is subject to a c ateg orica l exclusi on to deter mine whether

extraordinary

circ umstances a

re pr esent that would re quire fur ther re view for environmenta l impact. SeeNEPA Revised Implementing Proc edure s, 69 Fe d. Reg . 10866, 10876 (Mar . 8, 2004). The list of extraordinar y circ umstances to be c onsidered is substantially the same a s those listed in 43 C.F.R. § 46.215. See 69 Fe d. Reg . at 10878. 84. The Enda ng ere d Species Ac t The Enda ng ere d Species Ac t (“ESA”) establishes a c omprehe nsive fede ral program to limit the number of

fish, wildlife, and plant spec ies rende red e x tinct as a c onsequenc e of the ir interac tions with m ankind. The ESA r equire s that eac h fede ral a g ency consult with FWS or the National Mar ine Fishe ries Servic e to ensure that any action author ized, funded, or c arr ied out by that ag ency

is not li kely

to jeopardize the c ontinued exis tence of any endang ere d or threatened specie s or re sult in t he destruc tion or adver se modification of c ritical habitat for such spec ies. 16 U.S.C. § 1536(a)(2) . Where F WS is the actingag ency , it mustconduct a n intra-a g ency consultation. Id. Under

the ESA and its implementing r egulations, a fede ral a g ency must eng ag e in formal consultation with the Service s if an ac tion undertake n by that ag ency

“may aff ect” an endang ere d or threa

tened spe cies or its cr itical habitat. 50 C.F.R. § 402.14(a ). B. Factual Back

ground The National Bison Rang e Complex (“N BRC”) is a part of the National Wildli fe Ref ug e Sy stem located in Montana that includes the National Bison Rang e, Swan L ake, L ost Trail, Pablo, and Ninepipe N ational Wildl ife Ref ug es, as we ll as the Northwe st Montana Wetland Manag ement District in L ake County , Montana. See Admin. Record ( “AR”) 887SUPI I(5/8/2007 Chronology

and Plan for N ational B ison Range ). The N ational B ison Range , alongwith the Ninepipe a

nd Pablo National Wildl ife Ref ug es, lies entire ly

within the Flathea d Reservation, home to the Confede rate d Salish & Kootena i Tribes (“ CSKT”). The N ational B ison Range was established in 1908 by

President Theodor e Roosevelt to conse rve the Americ an bison, and bison

wer e re established at the r efug e af ter their numbe rs had dwindled to f ewe r than 100 in the wild. AR 887SUPI I . The NB RC is also home to a va riety of spec ies such as e lk, mountain goa ts,
9bighor

n sheep, pr ong horn ante lope, and mig ratory birds. Id. 1. The 2005 AF A On April 23, 2003, the CSKT submitted a letter to the Sec reta ry of the Interior e x pressing their intere st in neg otiating a n annual f unding a g ree ment (“A FA” ) pursua nt to the I SDEAA for the oper ation and mana g ement of the National B ison Range and anc illary proper ties on the Flathe ad Reser

vation. AR 510-13 (2/26/2003 L etter of Intere st); AR 1958-59 (6/30/2004 Br iefingStatement). FWS beg an neg otiations with t he CSKT in the summer of 2003. AR 2 887SUPI I ; see Notice, 70 F ed. Reg . 5205 (F eb. 1, 2005). The parties e x chang ed dra ft ag ree ments during the fa ll of 2003 but had not rea ched a n ag ree ment by

spring of 2004 and

rea ched out to DOI

officia ls to assist t he neg otiations. AR 1958-59. I n J une 2004, DOI transmitted a re vised draf t AFA a nd indicated that pr og ress c ould move forwa rd. Id. The pa

rties submitt ed the dr aft AF A for public c omment and announc ed the public c omment period in the Fede ral Register

. See 69 Fe d. Reg . 42199 (Jul y 14, 2004). On De cembe r 15, 2004, the pa rties signe d the Fisc al Yea

rs 2005-2006 Annua l FundingAg ree ment Be tween the United States Fish and Wildli fe Ser

vice a nd the Confede rate d Salish and Kootenai Tr ibes of the F lathead Reservation (“2005 AF A”) . AR 2685-98 (2005 AF A). F ollowing a cong ressional re view per iod, the 2005 AF A bec ame e ffe ctive on Mar ch 15, 2005. The 2005 AF A ca lled for the CSKT to per form ac tiviti es in five g ener al categ ories: Manag ement, B iologica l Progr am (includinghabitat manag ement), F ire Prog ram, Maintena nce Prog ram, a

nd Visitor Services. AR 2642. The CSKT was responsible f or the a ctivities identified

The letter

of intere st is dated Fe bruar y 26, 2003, but appar ently

was not transmitted to 2 the Secr etar

y of the Interior until April 2003. SeeAR 1958. 10in the AFA , subject to the final a uthority of the F WS Refug e Mana g er. A R 2643. On Marc h 1, 2006, FWS’s Project L eade r for the NB RC, S teven Ka llin, compiled a repor t on the CSKT’s implementation of the AF A in 2005. SeeAR 1132-1272 (Calenda r Ye ar 2005 Repor

t on I mplementation of AF A at NB RC). FWS found that in 2005, under the pre vious AFA, only 41% of the a ctivities perfor

med by the CSKT under the A FA w ere rate d as succ essful. AR 1137. I n the B iology

Prog ram, 9 out of 26 r equire d activities wer e rated as unsucc essful, with 6 more rate d as “ne eds improvement.” Id. at 1138. FWS found that some ac tiviti es we re not initiated in a timely manner and some we re not pe rfor med by qualified pe rsonnel. Id. In the Fir e Prog ram, FWS found that only

one of thre e re quired pre scribed bur ns was complete d, due in par t to poor planning

. Id. at 1139. In the Maintena nce Program, F WS found that “[s]everal of the highe st priority Activities, such as those that influe nce public he alth and long -term maintena nce of vehicles a nd heavy equipment, wer e not completed a t a satisfac tory

level.” Id. at 1139. The CSKT continued ope rations under the AF A in 2006. On April 27, 2006, the Projec t L eade r issued a me morandum complainingabout the CSKT’s fa ilure to maintain fenc es, indicating that “lac k of fe nce ma intenance has compromised our ability to manag e both the bison herd a nd habitat ac cordingto planned mana g ement strate g ies, and will complicate any future attempts to evaluate the re sults of our habitat manag ement ef forts.” A R 934SUP I I(4/27/2006 Memorandum) . Although the term of the 2005 A FA e x pired at the end of F iscal Ye ar 2006 in September 2006, F WS authorized the CSKT to continue opera tions under the AF A into Fisca l Yea r 2007 pendingcompletion of neg otiations for a futur e AF A. See AR 738SUPI I(9/5/2006 L etter f rom FWS Deputy

Reg ional Direc tor to the CSKT). On September 19, 2006, seven F WS employ ees f

iled an informa l gr ievanc e with the F WS Reg ional Direc tor alleg ing that a hostile

11work e nvironment had e x isted at the NB RC si nce the AFAcommence d in 2005. SeeAR 2356.

Followingan investig ation, the FWS Reg ional Direc tor conc luded that “a chronic and per

vasive workplac e proble m of consider able magnitude exis ted at the NB R.” AR 2353 (12/6/2006 Memorandum) . On Dec ember 5, 2006, the Project L eade r made a for mal reque st to have F WS

rea ssume bison feedingactivities from the CSKT, citingunderf eeding . AR 2340-41 (12/5/2006 Memorandum) . On Dec ember 6, the Reg ional Direc tor reque sted the termination of the CSKT’s authority to continue oper atingunder the 2005 AFAand an e nd to neg otiations toward an AF A for F iscal Ye ar 2007. A R 2353. The re commendation wa s based on the CSKT’s f ailure to maintain a saf

e and f air wor king e nvironment as we ll as poor per formanc e by the CSKT. AR 2353-54. The Re g ional Direc tor noted that “the CSKT perfor mance under the AFAwas not at a n

acc eptable le vel for the ir first y ear and has not made signific ant improvement in spite of signific ant input and assistance from the Ser vice.” AR 2354. On Dec ember

11, 2006, FWS formally

notified the CSKT that it was withdrawing the CSKT’s authority

to ext end per formanc e under the 2005 AF A and ter

minating ne g otiations for a Fisca l Year

2007 AFA . AR 2429-39 (12/11/2006 Memora ndum). The r easons g iven for the termination included the CSKT’s fa ilure to comply with bison manag ement standa rds, fa ilure to meet F WS wildlife monitoring a nd repor ting standa

rds, fa ilure to complete biolog ical study plans, and fa ilure to timely and prope rly

maintain vehicles, e quipment, and prope rty . AR 2432. The ter mination memorandum also cited the una cceptable wor kplace environment at the NB RC and unsaf e conditions for e mploy ees a nd the public. AR 2433. In his report on the CSKT’s perf ormanc e in ca lendar

y ear 2006, the NB RC P rojec t L eade r found that se vera l of the hig hest priority activities in the Maintenanc e Prog ram we re not c ompleted at a satisfactory level,

12including those that influence wildlife hea lth and safe ty , habitat manag ement and the long- term

maintenanc e of ve hicles, equipment a nd infrastruc ture, interior fenc e maintena

nce, a nd bison husbandry

. See AR 2517-2634 (Calenda r Ye ar 2006 Repor

t on Implementation of AF A at NB RC). He also found that the CSKT had failed to maintain e lectric fenc es at prope r voltag e, allowing bison to escape from a grazingunit and resulting in the death of one bison cow who was attacke d by

other bison while enta

ng led in the fe nce. See AR 2610-11. He f ound that the CSKT had sig nificantly

underf ed 64 surplus bison that wer e beingconfine d pendingtransfe r to other NWRS units in October-D ece mber 2006. See AR 2618-33 (2006 Repor t, Addendum C). Acc ordingto the Project L eade r, the CSKT’s under fee ding of bison “clea

rly justified the need f

or the FWS to cance l the CSKT’s bison feedingresponsibility , and fe ed these bison using F WS staff, in orde r to proper ly

prepa re the se bison for the stre ss of their pending reloc ation.” Id. at 2632-33. On J anuar

y 7, 2007, the CSKT pursued an a ppeal of FWS’s decision to terminate the AFAand ca

ncel ne g otiations before the B oard of Indian Appea ls. See AR 24-31 (Notice of Appea l and Statement of Rea sons). The CSKT contende d that FWS had improperly terminated the AF A without prior notice to the CSKT and that F WS had not notified the CSKT of alleg ed defic iencies a

nd g iven them an oppor

tunity to respond to them. AR 26. Some individuals also criticized the F WS Project L eade r and othe r F WS staff f or beinghostile towards the CSKT. See, e.g. , AR 2463-66 (12/15/2006 Statement by Paul Bishop). The CSKT also issued a detailed response to the alleg ations of poor pe rfor mance in the FWS’s evaluation for cale ndar year

2006. See AR 1826-1945 (Response to CY-2006 Pre liminary Perfor mance and Eva luation Summ ary ).

132. The 2008 AF A

Followingthe termination of the f irst AFA, D eputy

Secre tary of the Interior Ly

nn Scarle tt wrote a Memorandum to off

icials at F WS and the B urea u of Indian Aff

airs expressing disappointment with the way the first AF A was te rminated. See AR 2511-15 (12/29/06 Memorandum) . Deputy

Secre tary Scarle tt indicated that the ter mination of the AF A would

rema in in place but that DOI officia ls would imm ediately ree stablish a workingrelationship wit h the CSKT to include authorization of a new AFAfor F iscal Ye ar 2007 that would be substantially

the same a s the prior AF A. AR 2514. The CSKT submitted a proposed dr aft AF A in May 2007, but the parties’ neg otiations stalled. On November 26, 2007, Assistant Secreta ry for F ish and Wil dlife and Par ks L yle L aver

ty issued an “a ction plan” to re start neg otiations with a third-par ty neutra l fac ilitator. SeeAR 2224-57 (11/26/2007 Memora ndum). Neg otiations beg an in J anuar y 2008, resulting in the parties’ signingon J une 19, 2008, the “ Fisca l Year s 2009-2011 Annual F unding A g ree ment betwee n the United States De partment of the Interior F ish and Wil dlife Service and the Confe derated Salish and Kootena i Tribes of the F lathead Re serva tion” (“2008 A FA” ). AR 2699-2761 (2008 A FA) . The 2008 AF A bec ame e ffe ctive January 1, 2009 and expires on September 30, 2011. The 2008 AF A provides f or the CSKT to be more involved in the ma nag ement of the NB RC than under the 2005 AF A. The te rms of the AF A “re cog nize and formalize the 3 partne rship betwee n the Service and the CSKT in operating a nd maintaining a ll prog rams of the NB RC.” AFA § 2( A). The AFAprovides that the pa rties will collaborate in the manag ement of the NB RC through the “ Refug e L eade rship Team,” comprised of two FWS officials and two

Unless otherw ise specif

ied, all re fer ence s to “the AF A” a re to the 2008 A FA. 3 14CSKT officials, subject to the f inal authority

of the F WS Refug e Mana g er. A FA § 7( D). The AFAprovides that F WS may rea ssume responsibility

for a ny activities for which the CSKT are responsible in the e vent that the F WS Direc tor finds, and notifies the CSKT in writing , that the perf ormanc e of the CSKT is causing imminent jeopar dy to natural re source s or public hea lth and safe ty . AFA§ 17(C). 3. NEPA Compliance Prior to the adoption of the 2005 AF A, FWS officials took steps to ensure compliance with NEPA. On August 31, 2004, FWS’s Assist ant Reg ional Direc tor for N WR S Region 6, Richard Coleman, sig ned thre e docume nts relatingto the AFA ’s compliance with NEPA and other e nvironmental laws. See AR 2099-2106 (9/7/2004 Memora ndum from FWS Reg ional Direc tor, Reg ion 6). The f irst document, a “ Statement of Compliance f or Prog rammatic Categ orica l Ex clusion at the National Bison Rang e,” states that a ser ies of executive or ders a nd leg islative acts, includingthe ESA, wer e re viewed w ith respec t to the 2005 AFA. See AR 2100- 01. The sec ond document is an “ Environmental Ac tion Memorandum” e x pressingMr. Coleman’s dete rmination that the 2005 AF A is a categ orica l exclusi on as provided by 516 DM 4 6, Appendix 1, with no further docume ntation require d. See AR 2102. The third docume nt is FWS’s formal invocation of a categ orica l exclusi on. See AR 2103-06. The doc ument briefly descr ibes the terms of the 2005 AFAas we ll as the mission of the NBRC and the e stimated cost of the propose d action. Id. at 2103-05. The document conte mplates that “subseque nt AFAs” may include additional ac tiviti es and state s that FWS will neg otiate in g ood faith with the CSKT

Citations t o “DM” are to DOI ’s Depa rtmental Manua l, available at http://elips.doi.gov. 4 Chang es to the De partmenta l Manual ar e published in the Fede ral Register

. 15to expl ore the se opportunities. AR 2105. The doc ument then states, in per tinent part: The proposed action will have no signific ant adver s e ef fe ct on the quality of the human environment. The Prog rammatic ag ree ment betwee n the [FWS ] and the [C SKT] qualifies as a Categ orica l Ex clusion under 516 DM 6 Appendi x 1

. 4, (B 1) rese arc h, inventory , and information collection activi t i es d irec tly rela ted to the conser va tion of fish and wildlife resour ces which involve neg ligible animal mortality or habitat destruction, no introduction of contaminants, or no introduction of org anisms not indige nous to the aff ecte d ecosy stem; and (B 2) the o peration, maintenanc e, and manag ement of exis ting fac iliti es and routine rec u rr i n g manag ement ac tiviti es and improvements, including r enovations and r eplac ements which result i n o n l y minor chang es in the use, and have neg ligible environmenta l eff ects on-site or in the vicinity of the site; and (B 4) the use of presc ribed burning for habitat improvement purpose s, when c onducted in ac corda nce w ith local and State ordinanc e and la

ws. AR 2106; see also 516 DM 8.5(B ), 65 F ed. Reg . 52212, 52225 (Aug . 28, 2000) (de scribing cate g orica l exclusi ons). B ased on this ana ly sis, Mr. Coleman states that “[i] t is recommende d the [FWS ] conduct the proposed a ction and fulfill the agree ment of the AF A.” AR 2106. Followingpublic comment on the propose d AFA , FWS responded to conc erns that the AFAwas pre cede nt-setting f or the NB RC and the NWRS and that the Cate g orica l Ex clusion prepa red by FWS was insufficient to addr ess this prece dent. See Notice, 70 F ed. Reg . 5205, 5207 (F eb. 1, 2005). The ag ency stated: The Service does not believe the Ag ree ment is a major Fe dera l action that will result in signifi cant environmenta l impacts. The Service consider the work that is identified in the Ag ree ment to be part of t h e ro u t ine opera tions, maintenanc e, and manag ement of the Natio n al Bison Rang e Complex (whe ther done by Service employ ees, CSKT employees, or another contra ctor). The Service has fo und that routine operation, maintenanc e, and manag ement activiti es do not (individually or cumulatively

) have a signific ant eff

ect on the human environment and are , there fore , cate g orica lly

excluded from NEPA c ompliance ( 516 DM 6). 70 Fe d. Reg . 5207. In April 2007, the DOI ’s Off ice of the Solicitor issued a memorandum r eviewing , inter

16alia , the NEPA re quirements for a new proposed AF A with the CSKT for fisca l y ear s 2007-08. See AR 960SUPI I -998SUPI I (4/20/2007 Memorandum). T hat memora ndum states in pertinent part: 1. Does NEP A apply to the AF A? When the 2005-2006 AF A bec ame e ffe ctive, the FWS determined that NEPA did not apply beca use the AF A was w ithin the terms of a cate g orica l exclusi on. The re sult holds for the curr ent AF A as we ll. AR 962SUPI I

. In ear ly 2008, Congr essman John D. Dinge ll inquired about the propose d AFAand aske d whether NEPA applied to the a ction. In a dra ft response to the inquiry , a DOI officia l wrote, “NEPA doe s not apply

to the AFAproce ss. FWS responded to this with gre at spec ificity in the final AF A notice in the F ed Regin 2005.” AR 867SUPI(2/28/2008 Email from J anet Roell Naughton). On April 11, 2008, a f inal response letter wa s written to Congr essman Ding ell by Lyle L aver

ty , Assistant Secreta

ry for F ish and Wil dlife and Par ks. See AR 906-09 (4/11/2008 L etter f rom Lyle L aver

ty to the Hon. J ohn D. Ding ell). The le tter states in per tinent part: 1) Doe s the NEPA proc ess apply to the AFAproce ss? I f not, why ? A. No, NEPA does not apply to the awa rd of an AFA , as the awa rd itself is not a major fede ral action that will result in signific ant environmenta l impacts. As to the activities to be conducte d under the AFA , the U. S

. Fish and Wil dlife Service (Service ) considers the work itself to be part of the routine operations, maintenanc e, and manag ement of the National Bison Rang e Compl ex (whe ther done by Service employ ees, CSKT employees, or an other contra ctor). The Service has found that routine operation, m ai n tenanc e, and manag ement activities do not (individually or cumulatively

) have a signific ant eff

ect on the human environment and are , there fore , cate g orica lly

excluded from NEPA c ompliance. AR 907. This is the only evidenc e in the re cord r elatingto the NEPA revie w for the 2008 AFA

.

17II. LEGAL STANDARDS

A. Summary J

udgment Unde r Federal Rule of Civil Proce dure 56 The pa rties have filed cr oss motions for summary judgme nt pursuant to Fe dera l Rule of Civil Procedur e 56. Summary judgme nt is proper whe n “the plea dings, the discovery [i f any] and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P

. 56(c) . Under

the summary

judgme nt standard, the movingparty bear s the “initial responsibility of informingthe district court of the basis for its motion, and identifying those portions of the pleading s, depositions, answers to interr og atories, a nd admissions on file, toge ther with the aff idavits, if any , which it believes de monstrate the a bsence of a g enuine issue of materia l fac t.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (inter nal quotation marks omitted). In response , the non-movingparty must “g o beyond the pleading s and by [i ts] own af

fidavits, or by the depositions, answer s to interrog atories, a nd admissions on file, desig nate spe cific f acts showing that there is a g enuine issue f or trial.” Id. at 324 (interna l quotation marks omitted). All underlying f

acts a nd infere nces a

re a naly zed in the light most favora ble to the non-movingparty
. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). Where there are no disputed fac ts and re view is based sole ly on the administrative re cord, summar y judgme nt is appropriate for the party entitled to judgment a s a matter of law. Y oung v. Ge n. Servs. Adm in. , 99 F. Supp. 2d 59, 65 (D.D.C.), aff’d , 11 F. App’ x 3 (D.C. Cir. 2000). B. Administrati ve ProcedureAct Although the Plaintiffs have a sserted violations of va rious fede ral statutes, their c auses of action ar e base d on the Administrative Proce dure A ct (“ APA”), 5 U .S.C. § 701 et seq. Under the
18APA, the Court sets aside a n ag ency action that is “a

rbitrar y and ca pricious, an a

buse of discretion, or othe rwise not in ac corda nce w ith the law.” 5 U.S.C. § 706. Compliance with NEPA, as we ll as its procedure s relate d to environmental e valuations, are proper ly analy zed under the “ar

bitrary and ca pricious standar d.” Nat’l Tr ust for Hist oric Pres. v. D ole , 828 F.2d 776, 781 (D.C. Cir. 1987). The sc ope of r eview unde r this standard is we ll-established: the ag ency

must e x amine the r eleva

nt data and a

rticulate a satisfac tory

explanation for its action including a rational connec tion betwee n the fac ts found and the choice made. In revie wing that explanation, [t he court] must consider whether the decision was based on a considera tion of the rele vant fac tor s and whether there has been a clea r err or o f judgme nt
. . . Normally , an ag ency rule would be arbitra ry and capr i ci o u s if the ag ency has relied on fac ts which Congr ess has not intended it to consider, entirely failed to consider an i mportant aspec t of t he problem, offe red an explanation for its decision that runs counter to the evidenc e befor e the ag ency , or is so implausible that it c ould not be ascr ibed to a differ ence in view or the product of ag ency expertise. Motor VehicleMfrs. Ass’n v. State Farm M ut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983) (c itations and interna l quotations omi tted). This standar d of re view is defe rential to the a g ency , and the Court is not entit led to substitut e its judgme nt for that of the ag ency . Citi zens to Preserv e Ove rton Park, Inc. v . Volpe , 401 U.S. 402, 416 (1971). Ne verthe less, while def ere ntial, “cour

ts

are not obliged to stand a side and rubbe r-stamp their a ffirma nce of administrative dec isions that they deem inconsistent with a statutory mandate or

that frustrate the congressional policy underlying a

statute.” Nat’l Labor

Relations Bd. v. Brown , 380 U.S. 278, 290 (1965). See also McD onnell Douglas Corp. v. U.S. Dep’ t of the Air Force , 375 F.3d 1182, 1187 ( D.C. Cir. 2004) (holding that the “Court will not defe r to the ag ency ’s conc lusory or unsupported a ssertions”).

19III. DISCUSS ION

Plaintiffs in these actions asse rt a va riety of cla ims challeng ing D efe ndants’ dec ision to enter into the AFA w ith the CS KT. F irst, Plainti ffs c ontend that the AF A violates the Ref ug e Act bec ause it dele g ates the a uthority to administer the NB RC to an entity other than the FWS. Second, Plaintiffs contend that the AFAexceeds the sc ope of a uthority for a nnual funding ag ree ments under the I SDEAA by transfe rring“inher ently

Fe dera l functions” to the CSKT. Third, Plaintiffs contend that the A FA violate s FOIA bec ause it exempts from disclosure c erta in

rec ords maintained by

the CSKT. Fourth, the Ree d Plaintiffs contend that the AF A violates the Interg overnme ntal Personnel Ac t by failingto provide ce rtain protec tions for fede ral e mploy ees assig ned to work f

or the CSKT. Fifth, Plaintiffs conte nd that Def endants violated N EPA by failingto conduct a suf

ficient a ssessment of the AF A’s potential envir onmental impacts. Six th, the Blue Goose Plaintiffs contend that De fenda nts violated the ESA by

failingto conduct an assessment of the AFA ’s potential impact on enda ng ere d specie s. Defe ndants and the CSKT dispute these cla ims and argue that Plaintiffs lack standingto bring these c halleng es. The Court shall addre ss the threshold issue of standingbefor e turningto Plainti ffs’ c laims on the merits. A. Standing and Jurisdiction Def endants a nd the CSKT argue that Plaintiffs in both actions lack standingto assert their claims. Be cause standing to sue is an essential e lement of the c ase- or-c ontroversy require ment of Article I I Iof the United States Constitution, s tanding is a jurisdictional issue that must be resolved a s a threshold matter

. Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560 (1992). The elements of sta

nding a re w ell-established. To e stablish the “irre ducible constitutional minim um of standing ,” a pla intiff must show: (1) that it has suffer ed an injury in fac t, which is the invasion
20of a le g ally protec ted intere st that is (a) conc rete and par ticularized and (b) actua l or imminent, not conjectur al or hy

pothetical; (2) tha

t there is a c ausal c onnection betwe en the injury and the conduct at issue, such that the injury is fairly trac eable to the challeng ed ac t; and (3) that it is likely , as opposed to spec ulative, that the injury will be redr essed by

a fa vorable decision. Id. at 560-61. Plaintiffs bear

the burde n of demonstrating that they have sta nding. See id. at 561 (“ The party invoking f

eder al jurisdiction bear s the burden of establishing the [] elements [of standing ].”) Plaintiffs need not show that ea ch plaintiff ha s standing to a ssert eve ry claim; if, for e ach c laim, “standingcan be shown for a t least one plaintiff, [the cour t] need not c onsider the standingof the other plaintiffs to ra ise that claim.” Mountain States Legal Found. v. Glickm an , 92 F.3d 1228, 1232 (D.C. Cir. 1996). “A n org anization has repr esentational standing to litigate on beha lf of its members if ( a) its member s would otherwise ha ve standingto sue in their own rig ht; (b) the interests it seeks to protec t are g erma ne to the org anization’s purpose; and ( c) ne ither the c laim

asser ted nor the r elief r equeste d require s the participation of individual members in the lawsuit.” Commuter Rail Div. of Regional Transp. Auth. v. Surface Trasnp. Bd. , 608 F.3d 24, 30 ( D.C. Cir. 2010) (quotation mar

ks and citations omitted). Alternatively , an org anization may have sta nding to sue in its own right if the or g anization its elf ha s suffer ed an injury in fac t. See H

avens Re alty Corp. v. Coleman , 455 U.S. 363, 378-79 (1982). “ [W ]hen the plaintiff is not hims elf the obje ct of the g overnme nt action or inac tion he challeng es, standingis not precluded, but it is ordinarily ‘substantially

more diff

icult’ to establish.” Defende rs of W ildlif e , 504 U.S. at 562 (quoting Allen v. W right , 468 U.S. 737, 758 (1984)). The Court shall ex amine the pa rties’ a sserted injuries w ith

21respe ct to their cla ims. 5 1. Standing by

the Ree d Plaintiffs Def endants a nd the CSKT argue that the Ree d Plaintiffs lack standingto challeng e the AFA ’s deleg ation of authority to the CSKT because they do not have a

ny concr ete or particula rized injuries relatingto the CSKT’s manag ement of the NB RC. I n environmenta l case s such as this one, plaintiffs usua lly establish injury

in fac t by showing that they

have r ecr eational

or ae sthetic interests in par ticular land that will be adver sely aff ecte d by the cha lleng ed ac tions. See Friends of the Earth, Inc. v . Laidlaw Envtl. Servs. ( TOC), I nc. , 528 U.S. 167, 183 (2000) (“We have held that e nvironmental plaintiffs ade quately alleg e injury

in fac t when they

aver that they use the a ffe cted a

rea and ar e per sons ‘for whom the aesthe tic and re cre ational values of the

are a will be lessene d’ by

the cha lleng ed ac tivity .” (quoting Sierra Club v. Morton , 405 U.S. 727, 735 (1972)) . To establish that injury is imm inent, plaintiffs must show more than a va g ue desire to visitthe land at issue: “suc h ‘some day ’ intentions—without any descr iption of concre te plans, or indee d any

specific ation of when the some day will be—do not support a findingof the ‘a ctual or imminent’ injury

that our ca ses re quire.” Defende rs of W ildlif e , 504 U.S. at 564; see also Summers v . Earth Island Institute , 129 S. Ct . 1142, 1151 (2009) ( reje cting as insufficie nt plaintiff’s stateme nt that he has visited many National F orests and pla

ns to visit more in the future)

. In his supplemental decla ration attac hed to the Ree d Plaintiffs’ reply

brief, Plaintiff Da

vid Wis eman, the Re fug e Mana g er/Projec t L eade r for the NB RC from 1995 to 2004, avers that he

Be cause the Court finds that it need only rea ch Plaintiffs’ NEPA c laims, the Court shall 5 not addre ss whether

Plaintiffs have standingto bring their other c laims for re lief. 22has made periodic visits to the NBRC ea ch and e very year since he last worked the re, most

rec ently visiti ng in J une 2009. See R eed Pls.’ Reply , Ex . A (Supp. Dec l. of David Wiseman). Plaintiff Wi seman a lso declar ed (on F ebrua ry 16, 2010) that “[f]uture plans to visit t he NB RC include June of 2010 and Oc tober of 2010.” Id. Plaintiff Wi seman’s suppleme ntal decla ration is simil ar to one mentioned by the Supreme Court in Summers v . Earth Island Institute , 129 S. Ct

. 1142 (2009). In Summers , the Court ref ere nced a n aff idavit submit ted by

a member

of the plaintiff org anization averr ing that he had r epeatedly visited the Bur

nt Ridge site in the Sequoia National F orest, that he ha d imminent plans to do so aga in, and that his interests in viewingthe flora a nd fauna of the a rea would be har

med if the c halleng ed proje ct went f orwa rd without the g overnme nt providing him an oppor tunity to comment. See 129 S. Ct . at 1149. The g overnme nt

conce ded in Summers that such an a ffidavit wa s sufficient to conf er standing

. Id. Her e, howeve r, De fenda

nts argue that Wiseman’s dec lara tion is i nsufficie nt beca

use (1) it is poss ible to infer that the “[f]ut ure pla ns to visit ” ar e someone else’s pla ns, not his; (2) the future pla ns to visit are not “c oncre te,” a nd (3) the de clar ation does not establish Wiseman’s intentions as of Dec ember

2008 when the suit wa s filed. The Court is not persua ded by these a rguments. The only logic al interpre tation of Wiseman’s decla ration is that he had pla

ns to visit the NB RC in both J une and O ctober

2010, and those plans a

re c onsistent with W iseman’s stateme nts that he makes pe riodic visits to NBRC at least annua lly . Although he may not have f

ormed the intent to make those spe cific trips a s of Dec ember 2008, the clea

r import of his decla

rations is that he had a continuingintent to visi t regularly by that time, as demonstrate d by his visit to the NB RC in J une 2009. The Court finds that Plainti ff Wiseman’s plans to visit the NBRC ar e more than the

mere “some da

y ” intentions that are insufficient to establish an injury in fac t.
23In addition, Plainti ff De lbert De e “Skip” Palmer lives on a fa

rm eig ht miles from the NB RC and aver s that his ranch is contiguous with the Ninepipe National Wi ldlife Refug e, which is part of the N BRC. See R eed Pls.’ Reply , Ex . B ( Supp. Decl. of D elber t Dee “ Skip” Palmer) ¶¶ 6-7. Plaintiff Palmer ave rs that he f reque ntly visits or drives by

Ninepipe a

nd that he visits the Bison Rang e at lea st once a month. Id. ¶ 8. He claims that under the AFA , fenc es have not been maintained and w eeds ha ve bee n mismanag ed, ca

using the health and be auty of the ra ng e to decline a nd there by

reduc ing his e njoy

ment of it. See id. ¶ 7. This dec lara tion is sufficient to establish injury

in fac t for purpose s of standing

. See, e .g. , Friends of the Earth , 528 U.S. at 181- 83 (findingthat plaintiffs who lived nea r wa stewate r treatment plant established standingthroug h testimony their enjoy

ment of the a

rea was diminished by

pollution). Def endants a nd the CSKT argue that these injuries are too speculative be cause they are based on the unrea sonable a ssumption t hat the CSKT will gr ossly mismanag e the NB RC to t he detriment of the bison a

nd visitors to t he NB RC. The Court has a duty to rejec t alleg ations of injury that are “over ly

speculative.” See U

nited Transp. Union v. ICC , 891 F.2d 908, 912 ( D.C. Cir. 1989). Howe ver, when eva luating e vidence conce rningstanding , the cour t must “assume that on the merits the plaintiffs would be succe ssful in their claims.” Public Citiz en, Inc . v. Nat’l Highway Traffi c Safety A dmin. , 489 F.3d 1279, 1289 ( D.C. Cir. 2007). Her e, the Plaintiffs cla im that handingover ma

nag ement of the NB RC to C SKT may have sig nificant e nvironmental conseque nces a

nd that Def

endants ig nored or

disreg arde d evidenc e in the re cord that the CSKT could not succe ssfully

manag e the NB RC. These alleg ations are supported in par t by statements in the Wis eman a

nd Palmer dec larations sugg esting that the CSKT have f ailed to prope rly maintain fenc es and/or ma nag e noxious wee ds. Defe ndants attac k the log ic of c oncluding that

24there is mism anag ement by the CSKT based only

on a small number of

observations, but t hat is a dispute that g oes to the merits of Plaintiffs’ c laims, not to t he standinginquiry . Acc ording ly , the Court finds that the Ree d

Plaintiffs have suff

iciently aver red a n injury in fac t for purpose s of standing

. The Ree d Plaintiffs’ injury can be causa lly

trac ed to their c laims that the AFAviolates the Refug e Ac t and the I SDEAA, since w ithout thos e violations, acc ordingto Plainti ffs’ the ory , the CSKT would not be manag ing the NB RC. According ly , their injury may be re dresse d by

a favor able c ourt dec ision rescindingthe AF A. Simil arly , their injury is causally

connec ted to their NEPA claim, since the FWS might have de cided not to implement the AF A had it conduc ted the environmenta l assessment that Plaintiffs believe w as re quired. See M assachusetts v. EPA , 549 U.S. 497, 518 (2007) (“ When a litigant is vested w ith a proce dural right, that liti g ant has standing if there is some possibil ity that the re quested re lief will prompt the injury -ca using pa rty to

rec onsider the de cision that alleg edly harme d the litigant.” ); Sugar Cane Growers Coop. of Fla. v. Ve neman , 289 F.3d 89, 94- 95 (D.C. Cir. 2002) (“ All that is necessa ry is to show that the proce dural step wa s connec ted to the substantive re sult.”). Ther efor e, the Ree d Plaintiffs have standing to assert their c laims that the AFAviolates the Refug e Ac t and the I SDEAA and that Def endants violated N EPA.

2. Standing by

the Blue Goose Plaintiffs As with the Ree d Plaintiffs, Defe ndants argue that the Blue Goose Plaintiffs lack standing beca use, although they

have some interest in the CSKT’s alleg ed mismanag ement of the NB RC, their asse rted injuries a

re not c oncre te and pa

rticularized. Severa l of the Blue GoosePlaintiffs provided dec larations ex plaining the ir alleg ed
25injuries. Plaintiff Don E. Redfe arn, a former FWS employ ee a

nd curr ent President of B lue Goose Allianc e, ave rs that he ha s a dee p persona l interest in the conse rvation of wildlife a nd wildlife habitat at the N BRC that will be adve rsely aff ecte d if the CSKT perf

orms as poorly under the curr ent AF A as it did previously

. See B lue GooseComplaint, Ex . A (De cl. of Don E. Redfea rn) ¶ 5. He state s that he has visited the NB RC “severa l times beg inning in 1967 and most rece ntly

on May 22-23, 2008” a

nd that he “intend[s] t o return to the N BRC in the future .” Id. ¶ 8. Plaintiff Wil liam C. Reffalt, another former FWS official and c urre nt Vice Pre sident of Blue Goose Allianc e, ave rs that he ha s a similar interest in the c onservation of bison at NBRC. See B lue GooseComplaint, Ex . B ( Dec l. of Wil liam C. Reffalt) ¶ 11. Plaintiff Ref falt states that he and his wife visit national wildl ife re fug es whe never they trave l and that they

visited at least 35 ref ug es within the previous year (up to the date of his decla ration, April 6, 2009), ha

ving visited over 50 re fug es in the we stern United States since 2006. Id. ¶¶ 12- 13. He f urther states that he has visited the NB RC three times since 2002 to g ather historical information and photogr aph the a

nimals and that he too “intend[s] t o return to the N BRC in the future .” Id. ¶ 15. He a lso ex plains that he trave led at his own expense to Montana in January 2007 to make a prese ntation to FWS and DOIofficia ls about the previous AF A and the r easons f or its failure. Id. ¶ 16. Def

endants a rgue that these aver

ments are insufficient to conf er standingbeca

use they fail to show a spe cific pla nned re turn date to the N BRC. Def endants re ly

primarily on Lujan v. Defende rs of W

ildlif e , in which the Supreme Court found that the plaintiffs’ state d desires to return to e ndang ere d specie s habitat at unspec ified times in the future did not g ive rise to an “imminent” injury . 504 U.S. at 564. Def endants a lso invoke Summers v . Earth Island Institute , 26in which the Court held that a pla intiff’s ave rment that he pla nned to visit severa l unnamed National F orests in the future was not suffic ient to demonstrate that he would likely be injured by the cha lleng ed ac tion. 129 S. C t. at 1150. Howeve r, the de clar ations submitt ed by the Blue Goose Plaintiffs provide substantially more e vidence of an imminent injury than was be fore the Court in either Summers or Defende rs of W ildlif e . In those ca ses, the plaintiffs ha d visited the rele vant sites only

once in the pa st and had no pa rticular pla

ns to return to those sites. Her e, by contra st, Pl aintiffs Redfe arn a nd Reffa lt have ea ch visited the NB RC mul tiple times (including

rec ent visits) and profe ssed an intent—more than a mer e desire—to return. The fac t that Reffa lt trave ls ex tensively

to national wildlife ref

ug e ar eas a

nd has take n specific actions re lating to the NB RC is strongevidenc e that his intent to return to the NB RC will be re alized in the near future, takinghis injury

out of the re alm of the c onjectura l and hy pothetical. Ac cording ly , the Court finds that at least one of the Blue GoosePlaintiffs has aver red a n injury in fac t sufficient to confe r standing , and, for

the same r easons a s the Ree d Plaintiffs, the Court finds that the Blue Goose Plaintiffs have standingto assert their N EPA and ESA claims and c laims that the AFA violates the Refug e Ac t and the I SDEAA. B. Plaintif

fs’ NEPA Claims Plaintiffs argue that De fenda nts failed to comply

with NEPA beca

use they did not conduct a n environmenta l analy sis of the 2008 AF A prior to its adoption. Defe ndants contend that the AF A is cover ed by the “pr og rammatic” cate g orica l exclusi on that was invoked in 2004 prior to the appr oval of the 2005 A FA, a nd there fore there was no ne ed to conduc t an environmenta l assessment or a n environmenta l impact statement for the 2008 AF A. Once a cate g orica l exclusi on is established, “a n ag ency ’s ‘de cision to classify a propose d action as
27fallingwithin a particula r categ orica l exclusi on will be set aside only if a c ourt deter

mines that the dec ision was arbitra

ry and ca pricious.’” Back

Country Horsemen v . Johanns , 424 F. Supp. 2d 89, 99 (D.D.C. 2006) ( quoting Citi zens Comm. to SaveOur Canyons v. U.S. Fore st Serv. , 297 F.3d 1012, 1013 ( 10th Cir. 2002)). Ther efor e, the que stion before the Court is whether Def endants’ a

pplication of a c ateg orica l exclusi on to the 2008 AFAis arbitrar y and ca pricious. Plaintiffs contend that De fenda nts’ action wa s arbitra

ry and ca pricious bec ause the y

failed to conduct any

analy sis prior to applying the “programmatic” cate g orica l exclusi on to the 2008 AFA . This Court has previously ruled that a

n ag ency acts a rbitrar y and ca priciously when it fa ils to conduct a c ontemporane ous analy sis of whether a categ orica l exclusi on applies to a pa rticular ag ency action. See H

umane Soc ’y v . Johanns , 520 F. Supp. 2d 8, 33-36 (D .D.C. 2007); see also Fund for Animals, Inc. v. Espy , 814 F. Supp. 142, 149 (D.D .C. 1993) (findinga NEPA violation wher e “the rec ord re veals no c ontemporane ous consideration by the administrative decisionmake r of the a

pplicability

of the c ateg orica l exclusi on”). D efe ndants contend that the

rec ord shows that they

conducte d the re quired a naly sis. The re cord shows that Defe ndants did not formally invoke the categ orica l exclusi on for the 2008 AF A as they

had done pr eviously

for the 2005 A FA. D efe ndants note that the “Categ orica l Ex clusion” docume nt prepa red in 2004 c ontemplated that ther e may be “subse quent AFA s” with similar terms. This, howeve r, is not sufficient unde r NEPA, as the statute requir es that the ag ency

contempora

neously invoke a c ateg orica l exclusi on with respec t to each a ction it undertakes. See H

umane Soc ’y , 520 F. Supp. 2d at 33. The re is evide nce in the r ecor d that in April 2007, the DOI ’s Off ice of the Solicitor concluded that the cate g orica l exclusi on was applicable to a new pr oposed AF A with the CSKT for fisca l y ear s 2007-08. The me morandum
28from the Of fice of the Solicitor contains no deta iled analy sis or expl anation other than to ref

er back to the pr ior categ orica l exclusi on and state that “[t] he re sult holds for the curr ent AF A as well.” The only

other e vidence in the rec ord showingthat the ag ency considere d the issue is in its response to an inquiry

from Cong ressman John Dinge ll in early 2008 reg ardingwhether NEPA applies to the AF A proc ess. Ag ency corr espondenc e shows that off icials relied on the NEPA ana ly sis conducted f or the prior

AFA . In its formal response letter, the a g ency asser ted that the 2008 AF A fa lls withi n the categ orica l exclusi on for “ routine oper ations, maintenanc e, and mana g ement.” D efe ndants arg ue that this rec ord evide nce de monstrates that F WS adequately

considere d whether

the 2008 AF A fit a c ateg orica l exclusi on prior to sig ning the ag ree ment in J une 2008. Plaintiffs argue, howe ver, that this evidence doe s not establish compliance w ith NEPA beca use it does not show that Def endants c onsidered whether there wer e any

“extraordinar

y circ umstances” that might re nder the cate g orica l exclusi on inapplicable. T he DOI policies in eff ect at the time stated that “[a]ny action that is normally

cate g orica lly

excluded must be subjected to suff

icient environme ntal revie w to deter mine whether

it meets any

of the extraordinary

circ umstances, in which c ase, f urther a naly sis and environmenta l documents must be pre pare d for the a ction.” 69 F ed. Reg . at 10876. Def endants c oncede that the re cord doe s not show an a naly sis of any

extraordinary

circ umstances, but they

argue that ther e is no leg al require ment that such consider ation be docume nted. See Def s.’ Reply at 37-38. I

n Humane Society , this Court found that the Food Safe ty Inspection Service (“F SI S”), a unit within the U.S. Depa rtment of Ag riculture, ha d failed to c omply with NEPA regulations beca use, althoug h USDA had de termined that F SI S’s programs we re c ateg orica lly excluded, the ag ency

had ig nored
29its ongoingobligation to consider whethe r extraordinar y circ umstances e x isted such that the challeng ed ac tion may

have a signific ant environme ntal eff ect. 520 F . Supp. 2d at 33-36. The regulation in that case r equire d the FSI S to “continue to scrutinize [ its] activities to determine continued elig ibilit y

for c ateg orica l exclusi on.” Id. at 31 (quoting7 C.F.R. § 1b.3(c) ). B eca use the Court found that there was no e vidence in the rec ord that the a g ency had conside red the applicability

of the c ateg orica l exclusi on, it did not reach the question of pre cisely how much consideration NEPA require s. See id. at 33-34. Unlike in Humane Soc iety , there is some evidenc e in the re cord that DOI officia ls considere d the applica bility of the c ateg orica l exclusi on for the 2008 A FA, but the r ecor d fails to show whethe r the a g ency considere d the possibilit y that there wer e extraordinar

y circ umstances that mig ht require further environmenta l assessment. In Calif ornia v. Norton , 311 F.3d 1162 ( 9th Cir. 2002), the Ninth Circuit concluded that “[i] n many

instances, a

brief statement that a c ateg orica l exclusi on is being invoked will suffice .” 311 F.3d at 1176. Howeve r, the c ourt found that whe re “ there is substantial evidence in the

rec ord that exceptions to the cate g orica l exclusi on are applicable ,” ther e is a “ heig htened” need for a dequate justification. Id. ; see also W ilderness W

atch &Pub. Employe es for Envtl. Responsibility v. Mainella , 375 F.3d 1085, 1095 ( 11th Cir. 2004) (“Doc umentation of re liance on

a categ orica l exclusi on need not be detailed or leng thy . I t need only

be longenoug h to indicate to a re viewingcourt that the a g ency indeed c onsidered whether or not a c ateg orica l exclusi on applied and c oncluded that it did. . . . In most inst ance s, a short statement that a cate g orica l exclusion has been invoked will suffic e to assure a re viewingcourt that e nvironmental ef fec ts have be en conside red.” ) B eca use extraordinar

y circ umstances a

re, by definition, ext raor dinary , it would be inappr opriate to re quire a n ag ency , as a g ener al rule, to doc ument its consideration of

30them. Howeve r, this Court ag ree s that where there is substantial evidence in the rec ord that an

extraordinary

circ umstance mig ht apply , an ag ency may act a rbitrar ily and ca priciously by failing to expl ain its determination that a c ateg orica l exclusi on is applicable. See, e .g. , Brady Campaign to Preve nt Gun Violencev. Salazar , 612 F. Supp. 2d 1, 17 (D.D .C. 2009) (holding that ag ency ’s failure to consider r easona bly fore seea ble impacts of a g ency

action is sufficie nt to render the ag ency ’s invocation of a

cate g orica l exclusi on arbitra ry and ca pricious). The question, then, is whether there is substantial evidence in the rec ord that an e x traordina ry circ umstance a

pplies with respec t to the 2008 AFA. Plaintiffs argue that ther e is ample e vidence in the rec ord to advise De fenda nts that the AFAmay have sig nificant impac ts on public health or saf ety , ref ug e lands a

nd other e colog ically signific ant or c ritical ar eas, or endang ere d specie s, thus establishing an e x traordina ry circ umstance. See 516 DM 2, App. 2 (c odified at 43 C.F.R. § 46.215) ( listi ng extraordinary circ umstances) . Plaintiffs point t o the followingevidenc e in the re cord:

• FWS found that in 2005, under the previous AFA , only 41% of the Activities perf ormed by the CSKT under the AFA wer e rate d as succe ssful. See AR at 1137 (Calenda

r Ye ar 2005 Repor

t on I mplementation of AF A at NB RC).

• In the Biolog y Prog ram, 9 out of 26 require d Activities wer e rate d as unsucce ssful in 2 0 0 5 , wi t h 6 more rate d as “nee ds improvement.” Id. at 1138. FWS found that some Activities wer e not initiated in a timely manner and some we re not pe rfor med by qualified pe rsonnel. Id.

• In the Fire Prog ram, FWS fo u n d t h at only one of three require d presc ribed burns was c ompleted in 2005, due in par t to poor planning

. Id. at 1139.

• In the Maintenanc e Prog ram in 2005, “[s] ever al of the highe st priority Activities, such as those that influen ce p u b lic health and long- term maintenanc e of vehic l es and heavy equipment, wer e not completed at a satisfac tory

level.” Id. at 1139.

31• FWS found that in 2006, sever al of the h i ghest priority Activities in the Maintenanc e P rog ram were not completed at a satisfac tory level, including those that influence wildlife h ealth and safety , habitat m anag ement and the long- term maintenanc e of vehicles, equipment and infrastructure, interior fenc e maintenanc e, and bison husbandry

. See AR at 2520 (C alendar Yea r 2006 Report on Implementation of AF A at NB RC).

• FWS found t h at t h e CSKT had failed to maintain elec tric fenc es at proper voltag e, allowing bison to es cape from a g razing unit and resulting in the death of one bison c ow who was attacke d by other bison while entang led in the fe nce. See id. at 2610-11.

• FWS found t hat t he C SKT had sig nificantly underf ed 64 surplus bison that wer e being confine d pending t ransfer to other NWRS units in October

Dec ember 2006. See id. at 2618-33 (2006 Report, Addendum C). Acc ording to FWS Project L eade r Steven W. Kallin, the CSKT’s underf eeding of bison “cle arly justified the need for the FWS to canc el t he C SKT’s bison feeding responsibility , and fee d these bison using FWS staff, i n o rd er to proper ly prepa re these bison for the stress of their pending reloc ation.” Id. at 2632-33.

• Ultimately , FW S withdrew the CSKT’s authority to extend perf ormanc e under the expired FY 2006 AFA and terminated neg otiations for a FY 2007 AFA , direc t i ng the CSKT to cea se perf orming all activities at the NB RC under the AFA

. See AR 2429-39 (12/11/2006 L etter from J

. M i t ch King , Reg ional Direc tor to J ames H. Steele, J r.). FWS stated t hat t he reasons for the withdrawa l and termination included the CSKT’s failure to: comply with FWS bison manag ement st an d ar d s, meet FWS wildlife monitoring and repor ting standards, complete biologica l s tudy plans, and maintain safe conditions for employ ees a nd the public. Id. at 2432-33. See B lue Goose Pls.’ Mem. at 48-49. Plaintiffs also point to the fact that the 2008 A FA expanded the CSKT’s role in the ma nag ement of the NB RC. Theref ore, Plaintiffs arg ue that it is fore seea ble base d on the re cord that the CSKT’s manag ement of the NB RC under the 2008 AF A may have a signific ant impact on the NB RC. Def endants a rgue that any

conce rns about the CSKT’s future perf ormanc e base d on past operational problems is speculative a nd there fore need not be considere d in their NEPA ana ly sis. Howeve r, as this Court expl ained in Brady Campaign to Preve nt Gun Violencev. Salazar , 612 F.
32Supp. 2d 1 (D.D.C. 2009), “N EPA require s an ag ency to consider e nvironmental impacts eve n if the ef fec ts are not e ntirely

cer tain.” Id. at 22. Moreove r, the c ases c ited by Def endants in support of their “ speculation” argument are inapposite. Def endants c ite Kleppe v. Sie rra Club , 427 U.S. 390 (1976), and two othe r ca ses for the proposition that “NEPA does not re quire ag encie s to evaluate impacts that are speculative.” De fs.’ Mem. at 36. I n actua lity , Kleppeand these other

case s stand for the ve ry

differ ent principle that an ag ency need not c onsider environmenta l impacts when its own ac tion is speculative or hy pothetical. That is, the question in those case s was not whethe r the e nvironmental impacts of a particula r ac tion were speculative, but rather , whether

the ag ency

was, in fa ct, g oing to take a par ticular a ction in the future. See, e.g. , Kleppe , 427 U.S. at 408-09 (holdingthat an EI S was not require d wher e ther e wa s no evidenc e in the re cord that the ag encie s were contemplatinga proposa l for a ma jor fede ral a ction with respec t to the reg ion at issue). De fenda nt also cites Glass Packaging Institute v. Re gan , 737 F.2d 1083, 1092- 94 (D.C. Cir. 1984), for the proposition that NEPA does not require consideration of environmental e ffe cts ca used by the “c riminal acts of third pa rties.” De fs.’ Mem. at 36. The Court doe s not find that case analog ous to the situation here, whe re the ag ency is entrusting c erta in duties to an entity whose prior

authority to act in a similar manne r wa s revoke d due to per formanc e proble ms. The CSKT dispute Plaintiffs’ char acte rization of its performanc e under the 2005 AF A and ar g ue that past pe rfor mance is not necessa

rily an indicator

of how it would perf

orm under the 2008 AFA . The CSKT point out that they wer e not g iven an oppor

tunity to respond to FWS’s alleg ations about its perfor mance prior to the ter

mination of the AF A. They also contend that the alleg ations were made by FWS employ ees who opposed the AF A and ha d a motive to make the

33CSKT look bad. There fore , they contend that the e vidence in the rec ord of the CSKT’s mismanag ement of the NB RC does not present an e x traordina ry circ umstance w arr anting further environmenta l review . Howeve r, the pe rsuasivene ss of the evide nce in the r ecor d as to the CSKT’s perfor

mance is not a question for this Court to decide in the fir st instance. F WS might have r easona

bly conclude d that the alleg ations of the CSKT’s poor pe rfor mance wer e spec ulative and thus could be disre g arde d for pur poses of NEPA. Such a

decision would be a ffor ded g reat defe renc e under

the APA. B ut there is no evide nce in the r ecor d that the ag ency made a ny such conclusion. Instead, it appe ars that the a g ency ref lexi vely applied its prior ana ly sis without consideringthe fa ct that it had terminate d the prior AF A due in par t to the CS KT’s pe rfor

mance . The a g ency ’s fa ilure to explain it s application of a cate g orica l exclusi on, in light of substantial evidenc e in the re cord of

past perf ormanc e proble ms by

the CSKT, is arbitrary

and ca pricious. Acc ording ly , the Court finds that Def endants’ a doption of the 2008 AF A violates NEPA. C. Reme dy for NEPA Violation The re medy

for Plaintiffs’ NE PA claim is gove rned by the APA, which pr ovides that the revie wingcourt shall “ hold unlawf ul and set aside ag ency

action, finding s, and conc lusions found to be . . . a

rbitrar y , capr icious, an abuse of discre tion, or otherwise not in ac corda nce w ith law.” 5 U .S.C. § 706(2) (emphasis adde d); see Citizens to PreserveOve rton Park, Inc. v . Volpe , 401 U.S. 402, 413-14 (1971) ( “In all case s ag ency action must be set aside if the ac tion was ‘ar bitrary , capricious, an abuse of discre tion, or otherwise not in ac corda nce w ith law’ or if the action fa iled to meet statutory , proce dural, or c onstitut ional require ments.”) “ Pursuant to the

case law in this Circuit, vacatinga rule or ac tion promulgated in violation of NEPA is the standard r emedy .” Humane Soc ’y , 520 F. Supp. 2d at 37 (c iting Am. Bioscienc e, Inc . v. 34Thompson , 269 F.3d 1077, 1084 ( D.C. Cir. 2001)). Thus, havingfound that De fenda nts violated NEPA in enteringinto the AFA w ithout properly consideringits potential environmental impact, the def ault reme dy

is to set aside Def

endants’ a ction, there by

resc inding the 2008 A FA. Howeve r, the Court is not without dis cre tion: “The dec ision whether to vac ate de pends on the seriousne ss of the orde r’s de ficienc y . . . and the disruptive c onsequenc es of a n interim chang e that may

itself be cha

ng ed.” Advoc ates for Hwy. &Auto Safety v. Fe d. Motor Carrier Safety Admin. , 429 F.3d 1136, 1151 ( D.C. Cir. 2005) (quoting Allied-Signal, Inc. v . U.S. Nuclear Regulatory Comm’n , 988 F.2d 146, 150- 51 (D.C. Cir. 1993)). The CSKT argue that re scission of the AF A is not an appropr iate re medy beca use the pa rties have a long -term c ontrac tual relationship, t he disruption of which w ould have de leterious ef fec ts on operations at the N BRC. The c ases c ited by

the CSKT in support of this propositi on, howeve r, ar e re adily distinguishable. In Forelaws on Board v. Johnson , 743 F.2d 677 ( 9th Cir. 1984), the court de clined to vac ate 20- y ear contra cts in the third y ear of their ter

ms beca use of a statutory require ment that the contra cts be in place within 21 months ; the court de termined that injunctive re lief to enfor ce N EPA could not be re conciled w ith Congre ss’s purpose in ensur ing that contrac ts were in place. Id. at 685- 86; see also Amoc o Production Co. v. Village of Gambell , 480 U.S. 531, 541 (1987) (c iting Forelaws on Board

as an e x ample of “ unusual circ umstances” in which injunctive re lief would not be appr opriate to re medy violation of environmental statute) . In W ilderness W

atch v. United States Forest Servic e , 143 F. Supp. 2d 1186 (D. Mont. 2000), the court de clined to orde r the

remova l of hunting a

nd fishing lodg es that we re unla wfully constructe d absent e vidence that

35there was imminent ong oing e nvironmental har m from the structur es. Id. at 1210-11. 6 By contra st, this i s not a ca se whe re “ [t ]he eg g has bee n scrambled and ther e is no appar ent way

to restore the status quo ante.” See Sugar Cane G rowers Coop. v. Venem an , 289 F.3d 89, 97 ( D.C. Cir. 2002) (re mandingin lieu of vac ating ag ency action whe re a g ency

had alre ady administered pr og ram disbursinglarg e quantities of sug ar to fa rmers who had alr eady plowed under

their cr ops). The CSKT have not provided compe lling evide nce that rescission of the AF A would be unduly disruptive to the operations of the NB RC. The functions perf ormed by the CSKT under the A FA a re ta sks that would otherwise ha ve to be pe rfor

med by FWS. I ndeed, FWS has previously

taken ove r duties assig ned to the CSKT, havingdone so whe n the prior AF A was ter minated. The f

act that ther e may

be some c osts or “field- level” e ffe cts associated with the

resc ission does not mean that there should be an e x ception fr om the defa ult rule that arbitra

ry and capr icious ag ency

action be se t aside. The Court a lso notes that Defe ndants did not address this issue in their brief

s, sugg esting that Def

endants a re not a s conce rned a s the CSKT about the prospec t of rea ssuming sole mana g ement re sponsibili ty for the N BRC. There fore , pursuant to 5 U.S.C. § 706, the Court shall order that 2008 AF A be se t aside. Be cause the Court shall set aside the 2008 A FA a s an ar bitrary and ca pricious ag ency

action, there is no need for

the Court to consider Plaintiffs’ r equests for decla ratory relief as to the invalidity of the 2008 AF A under

fede ral statutes other

than NEPA. More over, Plaintiffs have failed to show that a

perma nent injunction is required to re dress the N EPA violation found by the The spec ial circ umstances pr esent in the other case s cited by

the CSKT are also not 6 applicable here

. See, e .g. , Nat’l Org. for the Reform of Marijuana Laws v. U.S. De p’t of State , 452 F. Supp. 1226, 1234-35 (D .D.C. 1978) (findingthat the public intere st did not support an injunction ag ainst U.S. participation in a Mexican program to spra y herbic ide on marijuana

and poppy plants). 36Court. See M onsanto Co. v. Geertson See d Farms , 130 S. Ct . 2743, 2761 (2010) ( “I f a le ss drastic r emedy

(such a s partial or c omplete vac atur of [the ag ency ’s] deregulation decision) wa s sufficie nt to redre ss respondents’ injury , no rec ourse to the a dditional and extraordinary relief of an injunction was wa

rra nted.”) . Acc ording ly , the Court shall deny the par ties’ cr oss-motions for summary judgme nt with respec t to all their other cla ims. IV. CONCLUSION For the re asons set for

th above, the Court sha ll GRANT Plaintiffs’ motions for summary judgme nt with respec t to their claims that Def endants violated N EPA, deny Def endants’ a

nd Interve nor-De fenda

nt’s motions for summary judgme nt with respec t to Pl aintiffs’ NE PA claims, and orde r that the 2008 AF A be se t aside. The Court sha ll deny the par ties’ motions for summary judgme nt with respec t to all other claims in these a ctions. An appropr iate Or der

acc ompanies this Memorandum Opinion. Date: Septembe r 28, 2009 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

37