WildEarth Guardians v. National Park Service , 703 F.3d 1178 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
January 9, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
WILDEARTH GUARDIANS,
Plaintiff-Appellant,
v. No. 11-1192
NATIONAL PARK SERVICE,
Defendant-Appellee.
---------------------------------------------
SAFARI CLUB INTERNATIONAL
and SAFARI CLUB
INTERNATIONAL FOUNDATION,
Intervenors-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:08-CV-00608-MSK-CBS)
Jennifer Barnes, Student Intern Attorney (Michael Harris, Associate Professor &
Director, Environmental Law Clinic, with her on the briefs), University of
Denver, Sturm College of Law, Denver Colorado, for Appellant.
John Emad Arbab, Attorney, Appellate Section (Ignacia S. Moreno, Assistant
Attorney General, and Andrew C. Mergen Attorney, Appellate Section, with him
on the brief), United States Department of Justice, Environment & Natural
Resources Division, Washington, District of Columbia, for Appellee.
Anna M. Seidman, Safari Club International, Washington, District of Columbia,
on the brief for Intervenors-Appellees.
Before KELLY, SEYMOUR, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
This appeal concerns WildEarth Guardians’ challenge to the National Park
Service’s elk and vegetation management plan for Rocky Mountain National Park.
WildEarth filed suit in federal district court challenging the plan and the final
environmental impact statement the National Park Service (NPS) prepared in
conjunction with the plan. WildEarth contends the NPS violated the National
Environmental Policy Act (NEPA) by failing to include the reintroduction of a
naturally reproducing wolf population as one of the alternatives considered in the
environmental impact statement. WildEarth also challenges the agency’s proposal
to allow volunteers to assist the agency in reducing the elk population.
The district court affirmed the agency action, and WildEarth appealed. We
find the record supports the agency’s decision to exclude consideration of a
natural wolf alternative from its environmental impact statement. We also find
the agency’s interpretation of the National Parks Organic Act and Rocky
Mountain National Park Enabling Act persuasive, and that its elk management
plan does not violate those statutes.
Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
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I. Background
Rocky Mountain National Park (RMNP), located in northern Colorado, was
established in 1915. The Rocky Mountain National Park Enabling Act (RMNP
Act) bans hunting or killing wildlife within the park, with very limited
exceptions. The park has always had a substantial elk population. But most elk
predators, especially wolves and grizzly bears, were exterminated in the park area
prior to its establishment, and Congress’s decision to ban hunting in RMNP
allowed the park’s elk population to grow without constraint.
In the 1930s, the National Park Service (NPS) became concerned that the
growing number of elk threatened the park’s vegetation through overgrazing. In
1944, the NPS began to control the number of elk by relocating or killing them.
This practice was the norm until 1969, when the NPS changed its elk management
policy. The agency theorized that increased hunting in the areas around RMNP
would sufficiently control the elk population, as elk tend to wander in and out of
the park. This policy was not successful, however, as commercial and residential
development near RMNP decreased the number of open spaces where hunting was
allowed and RMNP’s elk became habituated to residential areas. As a
consequence, the number of elk in RMNP has more than tripled since 1969.
Several studies conducted in the 1990s found that the park’s elk population
is substantially larger, more sedentary, and more concentrated than it would be
under natural conditions. As a result, elk overgraze much of the park’s
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vegetation, eliminating some plant species and making it difficult for others to
regenerate. In response, the NPS decided it needed a new elk management policy
for the park, both to reduce the overall number of elk and to make the population
fluctuate from year to year, as would occur under natural conditions. The NPS
expected this would also have a beneficial effect on the park’s vegetation.
In August 2002, the NPS assembled an interagency planning team to
develop a new elk management plan. The participating agencies included the
United States Forest Service, the Colorado Division of Wildlife (CDOW), 1 and
several nearby counties and municipalities, with the NPS designated as the lead
agency.
In May 2003, the NPS published a notice in the Federal Register of its
intent to prepare a new elk and vegetation management plan for RMNP and an
environmental impact statement (EIS) for the plan. 68 Fed. Reg. 32,084-02 (May
29, 2004). The NPS solicited public comments through a variety of channels,
including newsletters, a website, and public meetings.
The NPS received around 1,100 public comments on its proposal, which it
used to develop a preliminary draft of alternatives for the management plan. In
July 2004, the agency publicly released these draft alternatives. One of the
1
In 2011, the Colorado Division of Wildlife merged with the Division of
Parks and Outdoor Recreation to become the Division of Parks and Wildlife. We
refer to the agency by its old name, as all events significant to this appeal
occurred prior to the merger.
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proposed alternatives was reintroducing a self-sustaining wolf population to
RMNP (the natural wolf alternative). The NPS convened a meeting of biologists
and other experts in March 2005 to discuss the feasibility of the natural wolf
alternative. And once again, the agency sought public comments on the proposed
alternatives.
Based on the second round of public comments and feedback from its
experts, the NPS selected four alternative plans for analysis in an EIS. In a
publicly released August 2005 newsletter discussing these alternatives, the NPS
announced it would analyze the introduction of a small number of intensively
managed wolves into the park, in conjunction with the use of sharpshooters, but
would not include the natural wolf alternative in its EIS. The agency explained
this alternative was infeasible due to lack of support from coordinating agencies,
concerns by neighboring communities, the high potential for human-wolf
conflicts, and the likelihood that management of wolves in the park would be
expensive and time-consuming, distracting from the goal of the NPS’s
plan—managing elk.
In April 2006, the NPS publicly released a draft EIS that considered five
alternative management plans: (1) the current plan (the no-action alternative); (2)
rapid reduction of the elk population, which the agency identified as its preferred
alternative; (3) gradual reduction of the elk population; (4) a combination of
managed killing and elk contraception; and (5) a combination of managed killing
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and the introduction of a small number of intensively managed gray wolves. 71
Fed. Reg. 20,414-03 (Apr. 20, 2006). The draft EIS reiterated the NPS’s reasons
for excluding the natural wolf alternative.
The NPS again sought public comment on its draft EIS and held several
public meetings during the comment period. The agency then considered the
more than 3,100 comments it had received and prepared a final EIS.
The agency released its final EIS in December 2007. 72 Fed. Reg. 70,342-
01 (Dec. 11, 2007). Although the agency had identified rapid reduction as its
preferred alternative in the draft EIS, the final EIS selected a different alternative,
gradual reduction. The final EIS also made a small but important
change—expanding the definition of those who could assist the NPS with killing
elk to include qualified volunteers. The final EIS also took pains to distinguish
killing elk for management purposes, which it called culling, from hunting. The
final EIS defined “culling” as a highly controlled method for managing an elk
population and “hunting” as a loosely regulated recreational activity.
After the final EIS was released, WildEarth sought judicial review of the
NPS’s decision. WildEarth alleged the NPS acted arbitrarily and capriciously by
excluding consideration of the natural wolf alternative from its EIS. WildEarth
also alleged the NPS’s decision to allow volunteers to participate in culling
activities was tantamount to hunting, and violated the RMNP Act.
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The district court entered judgment for the NPS, concluding the agency
took a hard look at the relevant data and articulated a rational connection between
that data and its conclusion that the natural wolf alternative was infeasible. The
court also found the agency’s distinction between hunting and culling was
reasonable, and that the use of volunteers to assist in culling activities did not
violate the RMNP Act.
II. Discussion
A. Standard of Review
We give no deference to a district court’s review of agency action,
reviewing its decision de novo. Forest Guardians v. U.S. Fish & Wildlife Serv.,
611 F.3d 692, 710–11 (10th Cir. 2010). But our review of the NPS’s actions is
considerably more deferential. We review the NPS’s compliance with NEPA
under the Administrative Procedure Act (APA), which authorizes us to set aside
agency action only when it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Prairie Band Pottawatomie Nation v.
Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir. 2012).
When reviewing agency action, our task is to ensure the agency examined
the relevant data and articulated a rational connection between that data and its
decision. Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176
(10th Cir. 2008); FCC v. Fox TV Stations, Inc., 556 U.S. 502, 513 (2009). Our
deference to the agency is more substantial when the challenged decision involves
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technical or scientific matters within the agency’s area of expertise. Morris v.
U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir.), cert. denied,
131 S. Ct. 602 (2010). Accordingly, we will not set aside an agency’s decision
unless:
the agency (1) entirely failed to consider an important aspect of the
problem, (2) offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise, (3) failed to base its decision on consideration of the
relevant factors, or (4) made a clear error of judgment.
Forest Guardians, 611 F.3d at 711.
“Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA’s
goals of informed decisionmaking and informed public comment will not lead to
reversal.” New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir.
2009). And even if an agency violates the APA, this does not require reversal
unless the appellant demonstrates prejudice resulting from the error. Prairie
Band, 684 F.3d at 1008. As these principles imply, a “presumption of validity
attaches to the agency action and the burden of proof rests with the appellants
who challenge such action.” New Mexico, 565 F.3d at 704.
B. NEPA
WildEarth’s sole NEPA claim is that the NPS deviated from NEPA’s
required procedure by declining to consider the natural wolf alternative in its
environmental impact statement. WildEarth argues the wolf alternative fit the
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purpose and need of the proposed action, and thus required the NPS to consider it
in an EIS.
Agencies must consider alternatives to any project that might have a
significant effect on the quality of the human environment. 42 U.S.C.
§ 4332(2)(C)(iii). But agencies need not consider every possible alternative to a
proposed action, only “reasonable” alternatives. 40 C.F.R. § 1502.14(a); New
Mexico, 565 F.3d at 703. A “rule of reason” applies to an agency’s decision to
prepare an EIS, as well as the agency’s choice of alternatives to include in its
analysis. DOT v. Public Citizen, 541 U.S. 752, 767 (2004).
In other words, agencies are not required to consider alternatives they have
“in good faith rejected as too remote, speculative, or . . . impractical or
ineffective.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1039 (10th
Cir. 2001). “Alternatives that do not accomplish the purpose of an action are not
reasonable, and need not be studied in detail by the agency.” Citizens’ Comm. to
Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1031 (10th Cir. 2002)
(internal quotation and citation omitted). Agencies must “briefly discuss the
reasons” for eliminating unreasonable alternatives from an EIS. 40 C.F.R.
§ 1502.14(a).
WildEarth acknowledges that NEPA does not require an agency to consider
impractical alternatives, but it argues the natural wolf alternative was practical.
In particular, WildEarth points to studies, emails, and other documents in the
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record discussing the benefits of this alternative. The evidence WildEarth points
to falls into three broad categories: (1) evidence of the biological benefits of wolf
reintroduction, such as studies concluding that wolves not only reduce the number
of elk but also prompt elk to congregate in smaller groups and spend less time
grazing any particular area, further reducing their impact on vegetation; (2)
information about successful wolf reintroduction in Yellowstone National Park
and Banff National Park in Canada; and (3) evidence discussing the feasibility of
wolf reintroduction, including a 1994 survey showing that 70.8% of Coloradans
support wolf reintroduction and a 2004 report by CDOW’s Wolf Management
Working Group that discussed the potential benefits of wolf tourism and an offer
by an environmental group to compensate livestock owners for wolf predation.
While the record supports some benefits to a natural wolf option, that is not
what guides us. What guides us is a rule of reason, where the agency explains its
decision to take certain proposed options off the table because of a lack of
practicality.
The NPS did that here. The agency found the natural wolf alternative
would be impractical despite some marginal upside, and the record supports that
decision. For example, wolf reintroduction may have been successful in
Yellowstone and Banff, but the record reflects that those parks are not a good
comparator for RMNP. RMNP is many times smaller than Banff and
Yellowstone, and also much closer to residential and commercial developments at
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the park entrances, plus it is near a heavily populated urban area, Colorado’s
Front Range Urban Corridor. The NPS determined RMNP has relatively little
suitable wolf habitat due to its small size and abundance of steep, high-altitude
terrain, which wolves dislike. And as a consequence of the lack of habitat and
wolves’ natural tendency to disperse, NPS experts predicted that any wolves in
RMNP would be very likely to leave the park boundaries, prompting conflicts
with neighboring communities. Such conflicts would likely include predation on
livestock and pets.
All this would require intensive, costly management of wolves by RMNP
personnel, diverting the park’s resources and attention from the very problem the
NPS is trying to address—elk overpopulation and degraded vegetation. And
given RMNP’s relatively small size and the near certainty that wolves would
leave park boundaries, the NPS would need the cooperation of Colorado wildlife
agencies to manage wolves outside the park, where the NPS has no jurisdiction.
Yet CDOW was unwilling and unable to do so. To add to the complexity of the
proposal was the fact that the gray wolf species is endangered, lending a level of
state management not required of other species. See Colo. Rev. Stat. § 33-2-
105.5 (prohibiting any state or local agency from reintroducing threatened or
endangered species into Colorado without authorization from the legislature).
WildEarth argues the NPS should not have considered CDOW’s lack of
support when determining the feasibility of the natural wolf alternative.
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WildEarth reads federal regulations to require NPS to ignore CDOW’s opposition
when determining which alternatives to include in its EIS. 40 C.F.R § 1502.14(c)
(requiring agencies to consider alternatives otherwise outside their jurisdiction in
an EIS). We disagree with WildEarth’s broad reading of § 1502.14(c). This
regulation is intended to prompt agencies to consider otherwise appropriate
alternatives that the agency lacks jurisdiction to authorize. See Sierra Club v.
Lynn, 502 F.2d 43, 62 (5th Cir. 1974). But it is not meant to force an agency to
consider alternatives rendered infeasible by the actions of another agency.
If the NPS concluded the natural wolf alternative was infeasible because it
could not bring wolves to RMNP without CDOW’s permission, then 40 C.F.R.
§ 1502.14(c) might require the NPS to include that alternative in its EIS if the
alternative were otherwise feasible. But that is not the case. The NPS could
bring wolves to RMNP with or without CDOW’s approval. But without CDOW’s
cooperation in managing wolves outside RMNP’s boundaries, the NPS estimated
wolf reintroduction was unlikely to succeed. This is a question of feasibility, not
jurisdiction. Consequently, the NPS did not violate § 1502.14(c) by excluding the
natural wolf alternative from its EIS. 2
2
The NPS’s consideration of another alternative, the limited use of wolves
in conjunction with sharpshooters, demonstrates the proper application of 40
C.F.R. § 1502.14(c). The NPS would need the permission of the United States
Fish and Wildlife Service (USFWS) to reintroduce wolves into RMNP because
gray wolves are a federally listed endangered species. See 16 U.S.C. § 1539(j)
(permitting reintroduction of an experimental population of an endangered species
(continued...)
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In addition, WildEarth fails to support its claim that the NPS’s March 2005
meeting on the feasibility of the natural wolf alternative was somehow improper,
a “shadow process” that excluded the public from participating in the
consideration of this alternative in an EIS. Op. Br. at 28. WildEarth suggests
representatives from CDOW’s Wolf Working Group attended the meeting and
influenced the NPS to drop the natural wolf alternative from its EIS, but the
record does not support this assertion. Records from the meeting show only one
CDOW representative in attendance, who gave a presentation on chronic wasting
disease in elk. WildEarth cites nothing in the record establishing that any other
CDOW representatives were at the meeting, let alone that the CDOW attempted to
improperly influence the agency or any other attendees. 3
On the contrary, the record reflects that the attendees at the March 2005
meeting were all scientists from the NPS and other institutions and agencies,
including the U.S. Fish and Wildlife Service (USFWS), Colorado State
2
(...continued)
only with the Secretary of the Interior’s permission and only where “such release
will further conservation of such species”). The NPS included consideration of a
limited wolf reintroduction in its EIS, in compliance with § 1502.14(c), despite
the uncertainty of obtaining this permission.
3
The record evidence WildEarth cites to support its claim does not
actually do so. WildEarth cites an email from a USFWS biologist to an NPS
biologist expressing his opinion that wolf reintroduction in RMNP would not
succeed and would create more problems than it would solve. This email only
briefly mentions CDOW’s opposition, and does not mention the March 2005
meeting.
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University, and Banff National Park. The workshop notes reveal that the
assembled experts expressed many doubts about the feasibility of the natural wolf
alternative. For example, the experts concluded: “there would be no control over
where the wolves would go once they left the park,” “[m]anagement, wolf control
and compensation expense would be higher than other wolf options,” “[m]ore
time spent managing external issues rather than managing to meet the objectives,”
and “[p]otential to harm wolf restoration efforts in other areas if an attempt in
[RMNP] failed.” Aple. Supp. App. at 1088. For these and other reasons, the
experts concluded that “this option is not considered feasible or likely to be
successful.” Id. at 1032.
Agencies are entitled to rely on the opinions of their experts so long as
these conclusions are not arbitrary and capricious. Wyoming Farm Bureau Fed’n
v. Babbitt, 199 F.3d 1224, 1241 (10th Cir. 2000). WildEarth cites nothing
establishing that this conclusion was arbitrary and capricious. Instead, WildEarth
attacks the credentials of the assembled experts, pointing out that although the
experts were mostly biologists, their conclusions addressed the social implications
of wolf reintroduction. We are not sure the conclusions drawn at the meeting are
so easily categorized, but even if we agree with WildEarth that they were social,
there is no indication the experts were unqualified to draw these conclusions.
Nine of the eleven presentations given at the workshop were on biological topics,
such as wolf reproduction and the effects of wolf reintroduction on elk and
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willow in Yellowstone. But two experts gave presentations on social issues, and
WildEarth presents no evidence the experts’ conclusions were outside their areas
of expertise.
Further, WildEarth argues that, while agencies are entitled to rely on their
experts, they cannot exclusively rely on expert opinion without allowing for
public comment. Relying on Ctr. for Biological Diversity v. Morgenweck, 351 F.
Supp. 2d 1137 (D. Colo. 2004), WildEarth argues the NPS should not have made
a decision about the natural wolf alternative until its EIS was complete, as NEPA
requires agencies to gather information about an alternative through the EIS
process. Morgenweck dealt with a petition to list an endangered species. Id. at
1143. Morgenweck held that when the USFWS receives such a petition, the
Endangered Species Act and associated regulations require the agency first to
determine whether the petition is meritorious on its face, and then to gather
information about the status of the species, in part by soliciting public comments.
Id. Morgenweck found that the USFWS improperly solicited input from select
state and federal agencies when determining whether the petition was meritorious,
which was proper only during the information-gathering phase, and only by
seeking public comments, not by privately contacting select parties. Id.
Morgenweck is not applicable here. NEPA does not prohibit an agency
from gathering information from outside sources, as well as its own experts, to
determine whether an alternative is feasible and thus a candidate for analysis in
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an EIS. See, e.g., WildEarth Guardians v. U.S. Forest Serv., 828 F. Supp. 2d
1223, 1237–38 (D. Colo. 2011) (holding the Forest Service did not act arbitrarily
and capriciously by relying on the expertise of an outside agency to exclude from
its NEPA analysis a proposal submitted by WildEarth). And unlike the USFWS
in Morgenweck, which did not solicit public comments and instead privately
contacted select parties, the NPS here solicited two rounds of public comments on
its proposal before eliminating the natural wolf alternative from further
consideration.
Again, NEPA requires agencies to analyze only reasonable alternatives in
an EIS. 40 C.F.R. § 1502.14(a). Agencies are not required to analyze infeasible
alternatives so long as they articulate the reasons supporting their decisions. Id.
The NPS followed NEPA by articulating the reasons for its decision to exclude
the natural wolf alternative from its EIS, and those reasons find support in the
record. Thus the agency complied with NEPA’s required procedure.
WildEarth concludes by pointing to several emails and other internal
communications from NPS employees expressing the opinion that the natural wolf
alternative would be feasible, or at least should be included in the EIS. But the
fact that some individual NPS employees believed the natural wolf alternative
should be included in the EIS does not demonstrate that the agency ignored its
own experts or inexplicably changed its mind. WildEarth cites no evidence
showing this was a consensus view, rather than a recommendation from a few
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individual employees. Even if some NPS employees held this view, a diversity of
opinion by local or lower-level agency representatives will not preclude the
agency from reaching a contrary decision, so long as the decision is not arbitrary
and capricious and is otherwise supported by the record. See Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007). The NPS cites
ample evidence supporting its decision, including the consensus opinion of the
experts at its March 2005 meeting. Even the evidence WildEarth cites identifies
factors both supporting and undermining the feasibility of the natural wolf
alternative. Accordingly, WildEarth has not demonstrated that the NPS ignored
its own experts when it decided to exclude the natural wolf alternative from its
EIS.
Finally, it is worth reiterating that the NPS continued to consider wolves
as a management tool at RMNP even after it eliminated the natural wolf
alternative from its EIS. The agency included a modified wolf alternative in its
EIS, combining a more limited role for wolves with the use of sharpshooters to
cull elk. WildEarth suggests this alternative is not a substitute for the natural
wolf alternative at least in part because these wolves would be sterilized, but this
is not entirely accurate. Only the male wolves would be sterilized, and only at
first. If wolves proved useful as a management tool and successfully established
themselves in the park, they would later be allowed to breed. Under this plan,
RMNP’s wolf population would be more tightly regulated than under the natural
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wolf alternative, but this conclusion is appropriate given that the NPS’s goal was
not to reintroduce wolves but to manage elk.
In sum, we find that the NPS met NEPA’s requirements when it excluded
the natural wolf alternative from its EIS. The agency discussed the reasons for its
decision in a newsletter it released prior to its release of the draft EIS, in the draft
EIS, and in the final EIS, as required by 40 C.F.R. § 1502.14(a). The agency
drew a rational connection between these reasons and its conclusion by examining
the data in the record, consulting experts at its March 2005 meeting on wolf
reintroduction, and repeatedly explaining why it excluded the natural wolf
alternative from its EIS. Krueger, 513 F.3d at 1176. This is all NEPA and the
APA require.
C. RMNP Act
In its environmental impact statement, the NPS selected gradual reduction
in the elk population as its preferred alternative for RMNP’s elk management
plan. The EIS also specified that qualified volunteers could assist the NPS in
culling elk. The term “qualified volunteers” was defined to include members of
the public who received special training in wildlife culling and firearms use and
passed a proficiency test. WildEarth contends the use of volunteers transforms
the NPS’s culling into hunting, which is prohibited by the RMNP Act.
In making its determination, the NPS concluded the use of volunteers
would not violate the RMNP Act because the volunteers would be culling elk, and
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not hunting. The agency found that culling differed from hunting, which it
defined as a loosely structured “recreational activity” including elements “of fair
chase and personal take of the meat.” Aple. Supp. App., Vol. III, at 676. In
contrast, culling is a highly regulated and tightly controlled activity whose
primary purpose is the “efficient and humane [reduction of] herds of animals that
are habituated to the presence of humans.” 4 Id. The agency took the position that
4
The full definitions from the final EIS are as follows:
Hunting is a recreational activity that includes the elements of fair
chase and personal take of the meat, as well as being a conservation
tool. Hunting is administered by the state fish and game agency,
which licenses hunters. If areas of the park were to be opened to
hunting those areas would need to be closed to visitor use while
hunting was taking place. The NPS would need to absorb the costs
of managing hunters, visitors and media during a hunt.
Culling is used as a conservation tool to reduce populations that
have exceeded the carrying capacity of their habitat. As opposed to
hunting, culling is done under very controlled circumstances in order
to minimize impacts on park operations, visitors, private inholdings
and neighbors. Culling is also an efficient and humane way to
reduce herds of animals that are habituated to the presence of
humans. Culling is not recreational and does not incorporate the
concept of fair chase. Culling would be administered by the NPS and
carried out by NPS personnel and their authorized agents, and would
not require licensing by the state. The personnel doing the shooting
would be responsible for killing and processing several animals in
any session. Carcasses from culling operations would be tested for
chronic wasting disease and to the extent possible carcasses and/or
meat would be donated through an organized program to eligible
recipients, including members of tribes, based on informed consent
and pursuant to applicable public health guidelines. Short-term road
closures (a few hours most likely early in the morning) could be
needed while culling activity is ongoing.
(continued...)
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its use of qualified volunteers did not transmute its culls into impermissible hunts
because the purpose and structure of the culls distinguished them from hunting,
regardless of who participated. 5
The RMNP Act provides in relevant part: “All hunting or the killing,
wounding, or capturing at any time of any wild bird or animal, except dangerous
animals when it is necessary to prevent them from destroying human lives or
inflicting personal injury, is prohibited within the limits of [RMNP]. . . .” 16
U.S.C. § 198c. But the National Park Service Organic Act (Organic Act) states:
“The Secretary of the Interior . . . may also provide in his discretion for the
destruction of such animals and of such plant life as may be detrimental to the use
of any said park. . . .” 16 U.S.C. § 3. The NPS argues its plan is permissible
under § 3 and does not constitute hunting, so § 198c does not apply. WildEarth
contends the NPS’s plan involves hunting and violates § 198c.
As a preliminary matter, the parties and the district court evaluated the
NPS’s action under the deferential standard announced in Chevron U.S.A., Inc. v.
4
(...continued)
Aple. Supp. App., Vol. III, at 676.
5
In addition to the characteristics in the EIS definitions, the NPS indicated
that its culls would focus on culling female elk, and the number and type of
animals killed each year would vary depending on annual population surveys.
Culls will not take place when the elk population is within a specified range.
Cullers will operate under the supervision of an NPS team leader, will attempt to
cull multiple elk in any given event, and will attempt to ensure the “humane
dispatch” of targeted animals. Id. at 677.
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Natural Res. Defense Council, Inc., 467 U.S. 837, 842–42 (1984), which we can
apply when an agency interprets an ambiguous statute. But we do not
automatically apply Chevron every time an agency advances an interpretation of a
statute it administers. Whether Chevron applies “depends in significant part upon
the interpretive method used and the nature of the question at issue.” Barnhart v.
Walton, 535 U.S. 212, 222 (2002) (citing United States v. Mead Corp., 533 U.S.
218, 229–31 (2001)). We also consider the agency’s expertise, the importance of
the question to the agency’s administration of the statute, and the degree of
consideration the agency has given the question. Id. at 222. Although the
presence or absence of notice-and-comment rulemaking or formal agency
adjudication is also relevant, these factors are not dispositive. Id. When Chevron
does not apply, we still defer to the agency, but only to the extent its reasoning is
persuasive. S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 759 (10th Cir.
2005) (internal citation omitted).
In this case, the NPS’s interpretation of the RMNP Act and Organic Act
was not adopted as part of a formal rulemaking procedure or adjudication, nor is
there any indication the agency considered its interpretation for any great length
of time—it was announced only as a part of the final EIS. We do not know
whether the NPS considers its interpretation binding for other purposes, despite
the fact that this interpretation was announced in an EIS, after a formal notice-
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and-comment procedure. But as we explain below, whatever deference we give to
the agency, the NPS did not violate the RMNP Act.
1. The RMNP Act and Organic Act
The conflict is this: The Organic Act, 16 U.S.C. § 3, permits the killing of
“detrimental animals” in national parks, but the RMNP Act, 16 U.S.C. § 198c,
prohibits all hunting and killing of animals in RMNP, except animals that are
dangerous to humans. The NPS argues that because it has not authorized hunting
in the park, § 198c’s hunting ban is irrelevant. WildEarth counters that the
distinction between hunting and culling is illusory and § 198c prohibits
implementation of the NPS’s management plan.
The problem with both parties’ arguments is that § 198c is broadly written,
purporting to ban all hunting and killing of animals within RMNP. WildEarth
does not argue that § 198c prohibits the NPS from killing animals in RMNP for
management purposes; instead WildEarth argues that § 198c allows only the NPS
to use its employees to trim herds and not volunteers. But the logic of
WildEarth’s interpretation would bar any plan by the NPS that involves “hunting,
or the killing, wounding, or capturing” of animals in RMNP, § 198c, even if it
does not involve the use of volunteers. Therefore we must determine whether
WildEarth’s interpretation of these statutes is correct.
“The starting point in every case involving construction of a statute is the
language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756
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(1975) (Powell, J., concurring). Statutes must be read as a whole and in relation
to one another. United States ex rel. Sikkenga v. Regence Bluecross Blueshield of
Utah, 472 F.3d 702, 711 n.2 (10th Cir. 2006). When two related statutes appear
to conflict, courts have a duty to construe them harmoniously and give each
effect. Morton v. Mancari, 417 U.S. 535, 551 (1974). “The intention of the
legislature to repeal must be clear and manifest.” Id. (citing United States v.
Borden Co., 308 U.S. 188, 198 (1939)). Normally when two statutes conflict, we
interpret the more specific statute as an exception to the more general statute.
United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir. 1991).
The Organic Act states that it applies to specific parks to the extent its
provisions are not in conflict with any statute made specifically applicable to that
park. 16 U.S.C. § 1c(b). WildEarth suggests this provision requires us to read
§ 3 as the more general statute and § 198c as the exception to that statute. Under
this interpretation, § 3 applies in RMNP except to the extent it conflicts with the
specific provisions of § 198c.
The problem with WildEarth’s reading of § 1c(b) is that the RMNP Act
incorporates § 3 and makes it specifically applicable to RMNP. 16 U.S.C. §§ 195
& 197. This suggests that § 1c(b) does not control our interpretation of §§ 3 and
198c because both provisions are specifically applicable to RMNP.
So we could plausibly interpret either statute as the more general provision,
with the other as the exception. Interpreting § 3 as the general provision and
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§ 198c as the exception, as WildEarth suggests, would allow the NPS to destroy
detrimental animals in the park except through means prohibited by § 198c,
namely “[a]ll hunting or the killing, wounding, or capturing at any time of any
wild bird or animal, except dangerous animals when it is necessary to prevent
them from destroying human lives or inflicting personal injury.”
This interpretation is implausible because of § 198c’s breadth; it bans both
hunting and killing and does not exempt the NPS. Read literally, it would allow
even the NPS to kill only “dangerous” animals. But animals can be detrimental to
a park without being dangerous to humans, as RMNP’s elk demonstrate. If
§ 198c prohibited killing detrimental but non-dangerous animals, it would
effectively repeal § 3. Although this interpretation would still permit the killing
of dangerous animals under § 3, it would make § 3 redundant, at least in RMNP,
because § 198c also permits killing dangerous animals. We avoid interpretations
that render a statute redundant. Enfield ex rel. Enfield v. A.B. Chance Co., 228
F.3d 1245, 1250 (10th Cir. 2000).
WildEarth’s interpretation would also make it almost impossible for the
NPS to manage RMNP’s wildlife. Because interpreting § 198c as an exception to
§ 3 would do just that, and because we presume Congress enacted § 198c with a
knowledge of § 3, 6 see United States ex rel. Boothe v. Sun Healthcare Group,
6
The RMNP Act was first enacted in 1915, but § 198c was added in 1929.
See Pub. L. No. 70-1009, § 4, 45 Stat. 1536, 1537(1929). The Organic Act,
(continued...)
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Inc., 496 F.3d 1169, 1176 (10th Cir. 2007), we conclude § 198c does not create an
exception to § 3.
Instead, § 3 is better interpreted as the more specific provision. Under this
reading, hunting and killing wildlife is generally prohibited in RMNP, except in
the case of dangerous animals (§ 198c) or detrimental animals (§ 3). This
interpretation gives effect to both § 198c and § 3, allowing the destruction of both
dangerous and detrimental animals, but otherwise prohibiting hunting and killing
wildlife in RMNP.
But this does not end our inquiry. Section 198c contains two prongs: (1)
hunting, and (2) killing, wounding, or capturing. WildEarth argues that any
exceptions to § 198c apply only to the second prong, and not to the first.
Again, the text of § 198c guides us: “All hunting or the killing, wounding,
or capturing . . . of any wild bird or animal, except dangerous animals . . ., is
prohibited within the limits of [RMNP]” (emphasis added). WildEarth’s
argument is that the use of the disjunctive “or” and the placement of the
dangerous animals exception after “killing, wounding, or capturing” suggests that
Congress intended to allow the dangerous animals exception to apply only to the
second prong but not the first. This, in turn, suggests that any exception we read
into § 198c, namely § 3’s detrimental animals exception, should also apply only
6
(...continued)
including § 3, was enacted in 1916. See Pub. L. No. 64-235, § 3, 39 Stat. 535
(1916).
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to the “killing, wounding, or capturing” of animals in the park because it shows
Congress did not intend to create an exception to the hunting ban.
We agree that § 3 does not create an exception to the ban on hunting. To
harmonize the statutes, as we did above, we read the dangerous and detrimental
animals exceptions to § 198c to apply only to its prohibition on killing, capturing,
or wounding animals, not to its prohibition on hunting.
With these statutory considerations in mind, we turn to the NPS’s culling
option.
2. Culling Versus Hunting
Having determined that § 198c continues to prohibit all hunting in the park
and allows only for management killing—that is, the killing of dangerous or
detrimental animals at the Secretary’s discretion—we must discern what
differentiates prohibited hunting from permissible management killing.
WildEarth claims it is the identity of the party pulling the trigger. If an NPS
employee shoots an animal, it is permissible management killing. It is not clear
whether WildEarth considers an authorized contractor a permissible actor, but it
strongly condemns the use of volunteer agents, regardless of the shooter’s
motives or whether he or she has the NPS’s permission. The NPS, again, argues
that the nature and purpose of the act determines whether an animal’s destruction
is hunting or management killing, not the identity of those who carry it out.
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There is no support in the text of either § 3 or § 198c for WildEarth’s
position. Neither § 198c’s hunting ban nor the exceptions to that ban are based
on the identity of the party destroying the animal. Section 198c’s hunting ban is
universal, and the exceptions to the statute’s killing, capturing, or wounding ban
focus on the reason the animal is killed, rather than who kills it. Section 198c
permits animals to be killed if they are dangerous to humans, and § 3 permits
animals to be killed if they are detrimental to the park. And § 3 gives the
Secretary discretion to determine how detrimental animals are to be destroyed.
Nor does WildEarth satisfactorily explain why, if NPS personnel can shoot
an elk without it being considered hunting, the NPS’s agents cannot do so, or can
do so only if they are being paid by the NPS. Generally a principal can authorize
an agent to perform any lawful act the principal can perform himself. See
Phillips Petroleum Co. v. Peterson, 218 F.2d 926 (10th Cir. 1954); 2A C.J.S.
Agency § 129 (2012). WildEarth never explains why an authorized and carefully
supervised volunteer is not subject to this rule.
The more plausible distinction between hunting and management killing is
the one advanced by the NPS: namely, that the difference between permissible
management killing, or culling, and impermissible hunting is that the latter is the
recreational pursuit of game for meat and sport, with incidental management
effects on game populations, while the former is the closely supervised killing of
game to control its population. This interpretation rests on the reason the animal
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is being killed and is consistent with the text of §§ 3 and 198c. The identity or
subjective feelings of the person pulling the trigger do not matter.
WildEarth argues this distinction is illusory, pointing out that some
dictionaries define “hunt” broadly to include the general pursuit of wild animals
or game. Oxford English Dictionary (2d ed. 1989) (defining “hunt” as “to go in
pursuit of wild animals or game.”). WildEarth also notes that the NPS’s own
regulations define “hunting” as “taking or attempting to take wildlife,” and
“taking” as “to pursue, hunt, harass, harm, shoot, trap, net, capture, collect, kill,
wound, or attempt to do any of the above.” 36 C.F.R. § 1.4(a). WildEarth argues
that because NPS regulations define “hunting” very broadly, the agency should
not be allowed to assert a narrower definition here.
While these definitions are broad, we do not see them as restricting the
NPS’s park management under § 198c. We agree with the NPS that these
definitions were not intended to apply to § 198c. Section 1.4(a) states that its
definitions “shall apply to this chapter [of the Code of Federal Regulations]. . .”
(emphasis added), which chapter does not include § 198c. In fact, the regulations
make no reference to § 198c, nor any other similar hunting restriction.
In addition, the regulatory definition of hunting in 36 C.F.R. § 1.4(a) is
inconsistent with the text of § 198c and the interpretation WildEarth itself
advances. As discussed previously, § 198c contains two prongs: one banning
hunting, with no exceptions, and one banning killing, wounding, or capturing,
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with two exceptions. The problem with the regulatory definition is that it defines
“taking” as, among other things, “killing, wounding, or capturing,” as well as
“hunting.” In other words, if we were to seriously apply the regulatory definition
of “hunting” to § 198c, § 198c would have only one prong because “hunting” and
“killing, wounding, or capturing” would be redundant. This in turn suggests that
the § 198c exceptions would apply to all of § 198c, letting the NPS authorize
hunting in RMNP to remove detrimental or dangerous animals. We suspect
WildEarth would not agree with this interpretation, nor is it the better reading of
the statutory text. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995)
(reminding courts to avoid interpretations of statutes that render some words
redundant). In any event, the regulations themselves state they are not to be
construed to prohibit the implementation of “approved general management and
resource management plans.” 36 C.F.R. § 1.2(d).
For these reasons, the definition of hunting in 36 C.F.R. § 1.4(a) does not
control our interpretation of § 198c.
WildEarth’s last argument is that the NPS’s position is contradicted by its
own personnel, who stated in various emails that allowing volunteers to
participate in managed kills would constitute hunting. Specifically, WildEarth
points to an email sent by an NPS biologist, who reported that an unnamed
Interior Department attorney said during a meeting that using volunteers in a
culling program could be de facto hunting.
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This is not dispositive. At best, this is an informal, preliminary opinion by
an individual employee, not a formal position adopted by the agency. Again, the
fact that the NPS later adopted a different position does not mean that the agency
acted arbitrarily and capriciously. Nat’l Ass’n of Home Builders, 551 U.S. at 659.
The record reflects that the NPS’s elk management plan is meant to control
the number of elk in RMNP. Elk will not be killed when they are within the
target range. Culls will be closely supervised by NPS employees. Some cullers
may enjoy the experience, but this is irrelevant so long as they kill elk for
management purposes pursuant to the procedures and supervision of the NPS.
The primary purpose of hunting is not for controlling a population of detrimental
animals but for food and sport. Because the purpose of the NPS’s plan is to
control the population of the park’s elk and their effect on vegetation, it is
distinguishable from hunting, regardless of whether members of the public
volunteer to participate in culls. 7
7
In reaching this holding, we do not mean to suggest that the NPS may
authorize hunting in RMNP simply by covering it with the fig leaf of population
control. As discussed, § 198c unambiguously bars anyone from hunting in
RMNP. The culls contemplated by the NPS in its management plan will be
tightly controlled and are sufficiently distinct from hunting that they do not run
afoul of § 198c’s restriction. But § 198c would clearly prevent the NPS from
creating a scheme similar to a state-regulated hunt by, for example, selling tags to
licensed hunters and allowing them to freely roam the park every autumn to shoot
elk, even if the agency’s reason for doing so was to reduce RMNP’s elk
population.
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III. Conclusion
For the foregoing reasons, we AFFIRM the order of the district court.
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