Reservation of Agency Discretion Not "Arbitrary and Capricious"

By Robyn Hagan Cain on August 04, 2011 | Last updated on March 21, 2019

Public assistance programs lead to increased abortion rates, rampant disease, and chronic wasting ... among elk and bison.

In 2007, the U.S. Fish and Wildlife Service and the National Park Service developed a plan to stop the outbreak of disease and manage the elk and bison populations in Wyoming. Part of this plan included ending a longstanding agency practice of feeding these animals during the winter.

The Defenders of Wildlife challenged the plan in federal court under the Administrative Procedure Act (APA) claiming that the plan's failure to commit to a deadline for ending supplemental feeding was arbitrary and capricious.

Residents around Jackson, Wyoming began feeding the elk and bison populations after severe winters in Wyoming strained the elk populations around the turn of twentieth century. The federal government continued the practice of supplemental feeding after creating the National Elk Refuge in 1912. While this seemingly innocuous practice prevents starvation, it also merges the small cliques to which elk and bison instinctively gravitate into large groups at the feeding line. And that spreads disease.

Elk contract nasty diseases like brucellosis--which causes an infected female to abort her first calf, leaving behind contaminated fetal tissue on the ground capable of transmitting the disease to other animals--and chronic wasting disease (CWD), the elk version of mad cow disease.

Brucellosis rates within normal Wyoming elk herds are approximately two percent, but rates among elk that frequent the Refuge feeding lines are around 17 percent. Likewise, CWD rates in elk-hunt areas in Wyoming average around four percent, but in confined areas--like the feed lines--the rate can exceed 90 percent.

The agencies settled on an approach that would allow the elk and bison to survive the winter without supplemental feeding and, in the meantime, manage the risk of contagion until the practice ended. They did not set a deadline to end supplemental feeding, instead determining that a deadline would be unduly restrictive in light of the many variables and concerns in managing the Refuge.

The DC Court of Appeals upheld the plan this week, noting that the record demonstrated that the agencies complied with the APA by collecting relevant data, identifying the dangers of supplemental feeding, and adopting a plan to mitigate those dangers; that they also determined that their objectives could best be met without implementation of a fixed deadline for stopping supplemental feeding was not arbitrary or capricious.

One interesting point about this ruling: the court granted the agencies in this case broad discretion in determining whether unexpected circumstances should alter their plan; just last month, the court told the Fisheries Service that it does not have blanket discretion under the APA to determine the best way to carry out its duties.

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