Davis III, Paul v. Latschar, John

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 1999 Decided February 22, 2000
No. 99-5037
Paul Davis III, et al.,
Appellants
v.
John Latschar, Superintendent, Gettysburg National
Military Park, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00232)
Katherine A. Meyer, with whom Howard M. Crystal was
on the briefs, argued the cause for appellants.
Evelyn S. Ying, Attorney, U.S. Department of Justice, with
whom Lois J. Schiffer, Assistant Attorney General, and Rob-
ert L. Klarquist, Attorney, U.S. Department of Justice, were
on the brief, argued the cause for appellees.
Before Ginsburg and Garland, Circuit Judges, and
Buckley, Senior Circuit Judge.
Opinion for the court filed by Senior Judge Buckley.
Buckley, Senior Judge: In 1995, John Latschar, the Su-
perintendent of Gettysburg National Military Park ("Gettys-
burg"), instituted a program to curtail the over-browsing of
wooded and crop areas by white-tailed deer in Gettysburg
and the neighboring Eisenhower National Historic Site. The
program provides for the annual killing of deer by park-
employed marksmen after dark from October through March
until a desired density of deer per wooded square mile is
achieved. Paul Davis III, five other residents of Gettysburg,
Pennsylvania, and three animal rights organizations (collec-
tively, "Davis") seek an order enjoining the program on the
basis that, in approving it, the National Park Service had
failed to comply with its own enabling statute and policies
implementing that statute, the National Environmental Policy
Act, and the National Historic Preservation Act.
On December 31, 1998, the district court issued an opinion
in which it granted summary judgment in favor of the Super-
intendent, the Director of the National Park Service, and the
Secretary of the Interior, all of whom were joined as parties
defendant (collectively, "Superintendent"). See Davis v.
Latschar, __ F. Supp.2d ___ (D.D.C. 2000), No. 97-232, 1998
WL 968474, at *1 (D.D.C. Dec. 31, 1998) ("1998 opinion").
Davis thereupon filed a motion requesting the court to amend
the opinion "to correct ... the Court's characterization of
the record in the case." Motion to Amend and Reconsider
the Court's Ruling ("motion to amend"), reprinted in Joint
Appendix ("J.A.") at 920. In a memorandum opinion and
order issued on January 26, 1999, the court denied the
motion, again entered judgment for the defendants, and lifted
the stay that had caused the Park Service to suspend its
implementation of the deer management program. See Davis
v. Latschar, __ F. Supp.2d ___, ___ (D.D.C. 2000), No. 97-232,
1998 WL 968474, at *10 (D.D.C. Jan. 26, 1999) ("mem. op.").
We affirm the district court's summary judgment in favor
of the Superintendent for the reasons stated in the 1998
opinion, which we adopt as our own and reprint as an
appendix hereto. To District Judge Paul L. Friedman's
thorough and well-reasoned analysis, we would add only the
following comments concerning two issues raised by Davis in
his motion to amend and before this court in which he claims
that the 1998 opinion mischaracterizes the record. The first
of these relates to Davis's argument that the Park Service
was required by the National Environmental Policy Act to
prepare a supplemental environmental impact statement
("SEIS") for the deer management program to take into
account changes in park management recommended in a
newly proposed "General Management Plan" ("GMP") that
has since been adopted by the Park Service. These called for
significant reductions in wooded acreage and for changes in
agricultural patterns at Gettysburg that the Park Service
acknowledged would result in a reduction in the park's deer
population. The second relates to Davis's argument that the
Park Service failed to address the impact of the deer manage-
ment program on the contemplative atmosphere of Gettys-
burg as he alleges it was required to do under the National
Historic Preservation Act.
A. National Environmental Policy Act
In the memorandum Davis submitted in support of the
motion to amend ("Davis memorandum"), reprinted in J.A. at
922-30, he complained that the 1998 opinion's discussion of
the SEIS issue contained a misleading footnote and improper-
ly relied on an argument the Park Service's counsel made for
the first time before the district court. See, e.g., SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947) ("[A] reviewing court,
in dealing with a determination or judgment which an admin-
istrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the
agency."). The footnote complained of states that "[it] ap-
pears from the record ... that ... plaintiffs never request-
ed a supplemental EIS or argued that one was required until
they raised the issue in this Court." Davis, ___ F. Supp.2d at
___ n.7, 1998 WL 968474, at *8 n.7; Appendix at 15-16 n.7.
In support of his motion to amend, Davis submitted, as new
evidence suggesting that he had, in fact, raised the issue
before the Park Service, a copy of a letter proposing a
settlement of the case in which he urged the Service to
initiate an SEIS. If the court's failure to take cognizance of
facts not presented to it was indeed error, in this case it was
harmless error. As Judge Friedman correctly noted in dis-
missing the motion to amend, the footnote "was at most an
alternative ground for the Court's conclusion that a supple-
mental EIS was not required in this case." Mem. op. at 3.
The Park Service argument to which Davis objected, and
on which the district court relied, is to be found in the last
sentence of the following excerpt from the 1998 opinion:
Plaintiffs argue that [the removal of several hundred
acres of non-historic woodlands and changes in agricul-
tural patterns] will lead to a reduction in the deer
population. Once again, plaintiffs have improperly fo-
cused the inquiry. The deer management program is
intended to maintain the deer population density, not the
total deer population.
Davis, ___ F. Supp.2d at ___, 1998 WL 968474, at *8 (empha-
sis in original); Appendix at 14.
Davis describes the distinction between deer population
(i.e., the total number of deer within Gettysburg) and deer
density (which is measured in terms of the number of deer
per wooded square mile within the park) as a post hoc
rationalization. Davis is mistaken. The deer management
program is itself predicated on the need to control density.
See, e.g., Final Environmental Impact Statement, Appendix E
at 152 ("The National Park Service has decided the initial
April deer density goal will be 25 deer per square mile of
forested study area....").
It is worth noting that because the program is based on
density rather than population, it is remarkably sensitive to
the kinds of changes in the Gettysburg landscape that are
called for in the GMP. The Park Service recognizes that
"[t]he precise density of deer that would result in an accept-
able level of browsing that would allow Gettysburg [National
Military Park] and Eisenhower [National Historic Site] to
meet their landscape management objectives is unknown."
Id. at 151. Because of uncertainty regarding the optimal
density level, the Park Service erred on the side of preserving
deer by setting an initial goal that is less stringent than the
20 deer per square mile supported by the Park Service's own
research and recommended by the Pennsylvania Game Com-
mission for the county in which the parks are located. The
program calls for ongoing monitoring of the effects of deer
browsing on cropfields and woodlots so that the deer density
goal may be adjusted in light of actual experience in meeting
the parks' landscape objectives. Id. at 152-53.
B. National Historic Preservation Act
Davis maintains that the Park Service violated the National
Historic Preservation Act ("NHPA") because, in assessing the
impact of the nightly killing of deer on the parks, it ignored
what he believed to be its obligation to protect the "contemp-
lative" atmosphere of the Gettysburg battlefield. Davis mem-
orandum at 5-6. The record, however, confirms that the
Park Service gave the substance of his argument full consid-
eration. See, e.g., Section 106 Case Report at 9 (discussing
claim that deer management program would adversely affect
the " 'solemn and contemplative purpose' of the park"); Let-
ter from Superintendent Latschar to Brenda Barnett (Aug.
19, 1997) ("Audible effects are temporary, limited, proportion-
ally decreasing, and minimized by muzzle suppressors.").
Furthermore, the Park Service provided Davis's position and
its own evaluation of it to the Pennsylvania Historical and
Museum Commission and the Advisory Council on Historic
Preservation, with whom it was required to consult. See 36
C.F.R. ss 800.2(b)(2), (c) (1999). Each of these bodies agreed
that the program would have no adverse effect on the quali-
ties that make Gettysburg eligible for inclusion in the Nation-
al Register of Historic Places.
In light of the foregoing, the district court's order denying
the motion to amend and entering judgment for the Superin-
tendent is
Affirmed.
APPENDIX
Paul DAVIS III, et al., Plaintiffs
v.
John LATSCHAR, et al., Defendants
OPINION
Dec. 31, 1998
FRIEDMAN, District Judge.
The National Park Service (the "Park Service") seeks to
reinitiate its deer management program for Gettysburg Na-
tional Military Park ("Gettysburg") and Eisenhower National
Historic Site ("Eisenhower"). The program, which calls for
park rangers to shoot deer in a controlled harvest to maintain
the population density, was in effect in 1996 and 1997. The
Park Service suspended the program in July of 1997 because
of the pendency of this lawsuit and stipulated that it would
not reinitiate the program without an Order from this Court.
It has now requested such an Order.
Plaintiffs argue that the Court should enjoin the deer
management program because the Park Service has acted
contrary to (1) the National Park Service Organic Act ("Or-
ganic Act"), 16 U.S.C. s 1 et seq., (2) its management policies
implementing the Organic Act, (3) the National Environmen-
tal Policy Act ("NEPA"), 42 U.S.C. s 4321 et seq., and (4) the
National Historic Preservation Act ("NHPA"), 16 U.S.C.
s 470 et seq. Because the Court finds that the Park Service
acted consistently with the Organic Act and its implementing
guidelines and that it has complied with the procedures of
both NEPA and NHPA, the Court grants summary judgment
for the Park Service which therefore is permitted to reinitiate
its deer management program.
I. BACKGROUND
Gettysburg and Eisenhower are contiguous parcels of land
in rural Pennsylvania that are managed by the National Park
Service. Gettysburg was established to "preserve and pro-
tect the resources associated with the Battle of Gettysburg
and the Soldiers' National Cemetery, and to provide under-
standing of the events that occurred [there], within the
context of American history." See Draft General Manage-
ment Plan and Environmental Impact Statement for Gettys-
burg National Military Park ("Draft GMP"), Plaintiffs' Exh.
E at 7; see also An Act to Establish a National Military Park
at Gettysburg, Pennsylvania, s 3, 28 Stat. 651 (1895) (codified
as amended at 16 U.S.C. s 430g) (The Superintendent of the
park shall "ascertain and definitely mark the lines of battle of
all troops engaged in the battle of Gettysburg"). Eisenhower
was established to preserve the cultural and natural resources
of the home of President Dwight D. Eisenhower and to
interpret his life and career. See Final Environmental Im-
pact Statement for the White-Tailed Deer Management Plan
("Final EIS") at 3-5, Administrative Record ("A.R.") at 2200-
02.
By the early 1980's, the Park Service had become con-
cerned about deer overpopulation in the area of Gettysburg
and Eisenhower. In 1985, at the request of the Park Service,
Dr. Gerald Storm of Pennsylvania State University and his
colleagues began a study of the impact of the deer on the
parks "because of concern by the National Park Service
resource managers about the intensive deer browsing of tree
seedlings in historic woodlots, increasing consumption of farm
crops by deer, and high number of deer and automobile
collisions." Gerald L. Storm et al., Executive Summary of
Population Status, Movements, Habitat Use, and Impact of
White-Tailed Deer ("Storm Report") at 1, A.R. at 207. Cor-
roborating the concerns of the resource managers, Dr. Storm
found that the browsing of the deer depleted the oak and
white ash seedlings needed to maintain the woodlots' historic
appearance and that the deer consumed a large percentage of
the corn and wheat crop. Id. at 3-4, A.R. at 209-10. Dr.
Storm recommended that the Park Service reduce the deer
population density to a level "at or below the level recom-
mended for Adams County by the Pennsylvania Game Com-
mission." Id. at 4, A.R. at 210. This level was 20 deer per
forested square mile. Id.
Even before the Storm Report was completed, the Park
Service had begun to evaluate alternatives for controlling
deer population density. In February of 1990, Dr. Gerald
Wright of the University of Idaho sent a 100-page draft
environmental impact statement ("EIS") to the Park Service
that recommended fencing off the protected areas as the
preferred approach. See R. Gerald Wright, Deer Manage-
ment Alternatives for Gettysburg National Military Park and
Associated Environmental Analysis; A Draft Report (1990),
A.R. at 3944-4054. While Dr. Wright's report received some
initial favorable reviews, it was subsequently rejected as
substantively and procedurally inadequate and therefore was
used only as a research document. See May 7, 1990 Memo-
randum from Jacob J. Hoogland, Chief, Environmental Quali-
ty Division, to Bob Gift, Regional Director, Mid-Atlantic
Region, A.R. at 354 ("The draft environmental analysis that
we have reviewed informally has neither the substance nor
format necessary to suffice as an EIS").
In August of 1992, the Park Service published its Notice of
Intent to Prepare a Draft Environmental Impact Statement
in the Federal Register; the notice described a range of
alternatives that might be used to control deer population
density. See 57 Fed.Reg. 3806 (1992), A.R. at 984. The Park
Service noticed and held two open meetings to gather infor-
mation from the public on the desired scope of the EIS. See
Minutes of the January 7 Meeting on White-tailed Deer
Management at Gettysburg National Military Park/Eisen-
hower National Military Site Held at Penn State, A.R. at
1111-15; Environmental Impact Statement Meeting, Febru-
ary 27th, 1993, A.R. at 1169-75. In both the draft environ-
mental impact statement that it released in 1994 and the final
environmental impact statement it released in 1995, the Park
Service explicitly considered a range of alternatives, including
the fencing alternative proposed by Dr. Wright and endorsed
by plaintiffs in this litigation. See Draft Environmental
Impact Statement for the White-Tailed Deer Management
Plan ("Draft EIS") at 24-42, A.R. at 1888-1906; Final EIS at
24-42, A.R. at 2221-41.1 The Park Service then published its
__________
1. The Park Service created a list of alternatives using sugges-
tions from the public and Park Service personnel and by reviewing
the available literature. See Final EIS at 23, A.R. at 2220. The
Park Service eliminated nine alternatives from detailed study after
Record of Decision ("ROD"), choosing to manage the popula-
tion density through a controlled harvest (i.e., shooting the
deer to reduce their density), and began the hunt in the fall of
1996. Record of Decision ("ROD"), A.R. at 3570-76.
Plaintiffs brought suit in February of 1997 to enjoin the
shooting of the deer. After briefing had begun on plaintiffs'
motion for summary judgment, the Park Service moved to
stay the litigation, arguing that it would eliminate the issues
in the lawsuit by suspending the deer management program
while revisiting its compliance with the applicable laws. See
Defendants' July 25, 1997 Motion for Temporary Stay of
Litigation at 1-2. The Park Service also revealed that soon
after plaintiffs filed their complaint it had initiated procedures
to comply with the National Historic Preservation Act. See
Transcript of August 12, 1997 Motions Hearing at 7-8. After
the parties agreed that the deer management program would
not be reinitiated without an Order from this Court and
formulated procedures to ensure plaintiffs' involvement in the
NHPA process, the Court stayed the litigation. See August
15, 1997 Joint Stipulation.
The Park Service now has conducted what it believes to be
a sufficient NHPA process. It has prepared a Section 106
report analyzing the possible "adverse effects" of the deer
management program on Gettysburg and Eisenhower, includ-
ing its effect upon "location, design, setting, materials, work-
manship, feeling [and] association," 36 C.F.R. s 800.9(b), and
it has concluded that the program would have no "adverse
effects." See Section 106 Case Report; White-Tailed Deer
__________
initial consideration. These alternatives were: (1) restoration of
predators, (2) deterrents, (3) repellants, (4) poison, (5) public hunt-
ing, (6) fencing, (7) conversion of cropfields to pasture or hay and
grasses, (8) deer as a commodity, and (9) landowner privilege. Id.
at 24-30, A.R. at 2221-27. The Park Service then evaluated the
five alternatives it considered most viable in more detail. The
second group of alternatives were: (1) no action, (2A) capture and
transfer, (2B) direct reduction (shooting the deer), (3) reproductive
intervention (contraception), (4) cooperative management with
Pennsylvania authorities, and (5) combined management (a combi-
nation of 2B and 4). Id. at 30-42, A .R. at 2227-41.
Management, A.R. at 6352-62. The Park Service then sought
the concurrence of the State Historic Preservation Officer
("SHPO") and, pursuant to the parties' joint stipulation,
allowed the plaintiffs to submit their own materials. See
Letter from Dr. John A. Latschar, Superintendent of Gettys-
burg National Military Park to Brenda Barrett, Director,
Pennsylvania Bureau of Historic Preservation, A.R. at 6349-
51; Letter from Katherine Meyer to Dr. Brent D. Glass and
Brenda Barrett, A.R. at 6363-70. The SHPO agreed with the
Park Service that there would be no "adverse effects." See
Letter from Brenda Barrett to Dr. John A. Latschar, Super-
intendent of Gettysburg National Military Park, A.R. at 6371.
The same process was used to seek the approval of the
Advisory Council on Historic Preservation ("ACHP"). After
obtaining the views of the Keeper of the National Register on
plaintiffs' arguments, the ACHP also agreed with the finding
of "no adverse effect." See Letter from Don L. Klima,
Advisory Council on Historic Preservation to Dr. John A.
Latschar, Superintendent of Gettysburg National Military
Park, A.R. at 6504-06.2
On June 19, 1998, the Park Service declared its intent to
reinitiate the deer management program. In August of 1998,
the Park Service released a new draft General Management
Plan ("draft management plan" or "Draft GMP") for Gettys-
burg. Based on new research on the Battle of Gettysburg
and its relationship to Gettysburg's terrain, the draft manage-
ment plan recommended adjusting the landscape to better
reflect its state at the time of the battle. See Draft General
Management Plan and Environmental Impact Statement for
Gettysburg National Military Park ("Draft GMP"), Plaintiffs'
Exh. E at 59-60. In the draft management plan's preferred
alternative, the Park Service proposed cutting 576 acres of
non-historic woodlands, altering 278 acres of non-historic
woodlands to reflect historic woodlots and shifting the agri-
__________
2. The ACHP consulted with the Keeper of the National Regis-
ter regarding what traits Gettysburg possessed that would qualify it
for the National Register. See Letter from Donald Klima, Advisory
Council on Historic Preservation to Carol Shull, Keeper of the
National Register of Historic Places, A.R. at 6464-65.
culture to historical field patterns. See id. at 122-28. All
proposals considered under the draft management plan were
premised on achieving a deer density goal of 25 deer per
forested square mile, as well as the objective of maintaining
the historic woodlots and croplands. See id. at 74-75, 108-64.
II. DISCUSSION
A. Standard of Review
The Court may set aside the decision of the Park Service to
reinitiate the deer management program only if that decision
was arbitrary and capricious, not in accordance with the law
or unwarranted by the facts. 5 U.S.C. s 706(2)(A). For
challenges to an agency's construction of the statutes or
regulations that it administers--such as the Park Service's
reading of its Organic Act and management policies--the
Court's review must be particularly deferential. The Court
must defer to the agency's interpretation of a statute that it
implements "so long as it is reasonable, consistent with the
statutory purpose, and not in conflict with the statute's plain
language." OSG Bulk Ships, Inc. v. United States, 132 F.3d
808, 814 (D.C.Cir.1998) (quoting Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C.Cir.1989)); see Chevron
U.S.A., Inc. v. Natural Resources Defense Council. 467 U.S.
837, 845, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Similarly,
provided it does not violate the Constitution or a federal
statute, an agency's interpretation of its own regulations "will
prevail unless it is 'plainly erroneous or inconsistent' with the
plain terms of the disputed regulations." Everett v. United
States, 158 F.3d 1364, 1367 (D.C.Cir.1998) (quoting Auer v.
Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997));
see Stinson v. United States, 508 U.S. 36, 45, 113 S. Ct. 1913,
123 L. Ed. 2d 598 (1993); Amerada Hess Pipeline Corp. v.
FERC, 117 F.3d 596, 600 (D.C.Cir.1997).
The standard of review for agency decisions is highly
deferential:
[T]he Court must consider whether the decision was based
on a consideration of the relevant factors and whether
there has been a clear error of judgment. Although this
inquiry into the facts is to be searching and careful, the
ultimate standard of review is a narrow one. The Court is
not empowered to substitute its judgment for that of the
agency.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); see Motor
Vehicles Manufacturers Ass'n v. State Farm Mutual Auto-
mobile Insurance Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77
L. Ed. 2d 443 (1983). The Court's "task is to determine
'whether the agency's decisionmaking was reasoned,' ... i.e.,
whether it considered relevant factors and explained the facts
and policy concerns on which it relied, and whether those
facts have some basis in the record." National Treasury
Employees Union v. Horner, 854 F.2d 490, 498 (D.C.Cir.1988)
(quoting American Horse Protection Ass'n. Inc. v. Lyng, 812
F.2d 1, 5 (D.C.Cir.1987)).
B. The National Park Service Organic Act and Policies
Under the National Park Service Organic Act, the Secre-
tary of the Interior "may ... 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 parks, monuments, or
reservations." 16 U.S.C. s 3. Because the Organic Act is
silent as to the specifics of park management, the Secretary
has especially broad discretion on how to implement his
statutory mandate. See Daingerfield Island Protective Soc'y
v. Babbitt, 40 F.3d 442, 446 (D.C.Cir.1994); see also Bicycle
Trails Council v. Babbitt, 82 F.3d 1445, 1454 (9th Cir.1996)
(adopting the district court's opinion); Intertribal Bison
Coop. v. Babbitt, 25 F. Supp. 2d 1135 (D.Mont. 1998). Still, a
"finding of detriment" is necessary before the Park Service
may engage in a "controlled harvest" such as the one pro-
posed by the Park Service in its deer management program.
Intertribal Bison Coop. v. Babbitt, at 1138 ("pursuant to s 3
of the Organic Act and Park Service policy a finding of
detriment is necessary to justify a controlled harvest, ... but
an explicit finding of detriment is not otherwise necessary to
justify the destruction of wildlife ...."); see also General
Regulations for Areas Administered by National Park Ser-
vice, 48 Fed.Reg. 30,252, 30,264 (1983) (controlled harvest
"will be utilized only when a finding of 'detriment,' based on
scientific documentation, has been made by the superinten-
dent, and it is determined that removal is an acceptable
method of resource management").
The Park Service claims that it made a sufficient "finding
of detriment" to justify the destruction of the deer under the
Organic Act when it concluded that overbrowsing by deer in
the historic woodlots and cropfields was detrimental to the
purposes of the parks.3 As is reflected at several points in
the record, the Park Service determined that the overbrows-
ing was preventing it from achieving the parks' objectives of
preserving the historic appearance of the woodlots and crop-
fields, components of the landscape critical to the understand-
ing and interpretation of the historic events that took place in
each park. See, e.g., ROD at 2, A.R. at 3571 ("Management
objectives for maintaining landscape components, specifically
historic woodlots and cropfields, were developed to enhance
visitor understanding of each park's events"). For example,
in its Record of Decision initiating the deer management
program, the Park Service concluded that
[d]ata from the [Storm Report] showed that the woodlots
and cropfields could not be maintained in a way necessary
to achieve park objectives. The high level of deer browsing
was preventing a sufficient number of tree seedlings from
becoming established, which is needed to perpetuate the
historic woodlots. The agricultural program was unable to
grow historical crops to maturity in Eisenhower NHS and
__________
3. Despite plaintiffs' contentions that the Park Service was
acting in the economic interests of certain tenant farmers in making
this determination, the Court concludes that the record does not
demonstrate that the Park Service had any such ulterior motive. It
was not unreasonable for the Park Service to have kept the farmers
informed about efforts to control the deer and to respond to their
concerns in writing.
the southern part of Gettysburg NMP due to deer brows-
ing.
Id. at 3, A.R. at 3572. The Court concludes that Park Service
made a sufficient "finding of detriment" on the record to
satisfy the requirements of the Organic Act.
Plaintiffs contend, however, that the "finding of detriment"
made by Park Service is arbitrary and capricious because it is
inconsistent with the alleged admission by the Park Service in
its draft management plan that the cropfields and woodlots do
not need protection because they do not reflect the historic
landscape. Contrary to plaintiffs' assertion, the draft man-
agement plan contains no such admission. The plan proposes
to eliminate only non-historic woodlands. See Draft GMP at
122. The perpetuation of the historic woodlots and croplands
is still necessary to achieve park objectives under the draft
management plan. Nothing in the record suggests that the
threats to these historic resources from deer overbrowsing--
i.e., the suppression of oak and white ash seedlings and
excessive crop loss--are any less likely to occur in the new
management regime than at the time the Park Service issued
its decision to institute the deer management program. The
"finding of detriment" by the Park Service therefore is not
undermined by the draft management plan and may still
justify the "destruction" of deer under the Organic Act.
If the Organic Act were the only authority limiting the
management discretion of the Park Service, the analysis
would end here. But the Park Service has further bound its
own discretion through the adoption of Management Policies.4
The Management Policies provide that
__________
4. Whether the Park Service is bound by its Management
Policies turns on "the agency's intent to be bound." Vietnam
Veterans of America v. Secretary of the Navy, 843 F.2d 528, 538
(D.C.Cir.1988). Plaintiffs contend that the Park Service demon-
strated the requisite intent in the Forward to policies when it stated
that "[a]dherence to policy will be mandatory unless waived or
modified by an appropriate authority." National Park Service
Management Policies, Plaintiffs' Exhibit I at ix. Since defendants'
[u]nnatural concentrations of native species caused by hu-
man activities may be controlled if the activities causing the
concentrations cannot be controlled.... Animal popula-
tions or individuals will be controlled ... in cultural or
development zones when necessary to protect property or
landscaped areas.
National Park Service Management Policies ("Park Service
Management Policies"), Plaintiffs' Exhibit I at 4:6. Plaintiffs
argue that the Park Service has violated these policies be-
cause it has opted to control the deer overpopulation without
first exhausting the available means to regulate the human
activities causing the overpopulation. In particular, plaintiffs
again point to the draft management plan as evidence that
the deer population could be reduced by controlling "human
activities" such as the decisions of the Park Service regarding
the maintenance of Gettysburg's woodlands and cropfields.
The Park Service asserts that the Court does not need to
reach the merits of plaintiffs' argument because plaintiffs
have misread the Management Policies. The Park Service
maintains that the statement that "[a]nimal populations ...
will be controlled in cultural ... zones when necessary to
protect property or landscaped areas" is meant as an excep-
tion to the preceding sentence requiring that the Park Ser-
vice attempt first to control human activities before looking to
control the animal populations. As a result, the Park Service
argues that once it found that Gettysburg and Eisenhower
were "cultural zones" with landscaped areas in need of pro-
tection, it was entitled to control the deer population directly
without first seeking to control human activities.5
While the language of the Management Policies could be
interpreted either as plaintiffs read it or as the Park Service
does, the interpretation of the Park Service is plausible; it
__________
did not challenge this assertion, the Court finds that the Park
Service intended to be bound and is bound by the policies.
5. Plaintiffs do not contest the Park Service's position that
Gettysburg and Eisenhower are cultural zones and that their land-
scaped areas need protection.
certainly is not "plainly erroneous or inconsistent" with the
policies and therefore must prevail over plaintiffs' reading.
See Everett v. United States, 158 F.2d at 1367. The first
excerpted sentence describes two alternatives for addressing
overpopulation of native species--control of the animal popu-
lation and control of the human activities that caused the
"unnatural concentrations" or overpopulation--and announces
a preference for the latter. The second excerpted sentence
discusses only one of these two alternatives--control of the
animal population--in the context of cultural or development
zones. When these two sentences are juxtaposed, the read-
ing of the second sentence as an exception to the first
sentence's preference for the control of human activities is
not unreasonable. If the Park Service intended to express a
preference for the control of human activities when address-
ing overpopulation in cultural or development zones, it is
reasonable to expect that it would have explicitly discussed
this alternative technique in the second sentence, as it had in
the first. It did not do so. The interpretation of the Man-
agement Policies proffered by the Park Service is not "plainly
erroneous or inconsistent" with the plain terms of the policies
and therefore is entitled to deference.
B. NEPA
Plaintiffs challenge the deer management program under
NEPA on two grounds. First, they argue that the Park
Service did not consider many reasonable alternatives in its
final EIS. Second, they argue that the Park Service must
prepare a supplemental EIS as a result of the changes in
park management that are considered in the draft manage-
ment plan. Because the Court finds that the Park Service
considered a full range of reasonable alternatives and was
within its discretion by opting not to prepare a supplemental
EIS, the Court concludes that the Park Service fully complied
with NEPA's procedural requirements.
1. Reasonable Alternatives
The regulations implementing NEPA require an agency to
"specify the underlying purpose and need to which the agency
is responding" and to "[r]igorously explore and objectively
evaluate all reasonable alternatives, and for alternatives
which were eliminated from detailed study, briefly discuss the
reasons for their having been eliminated." 40 C.F.R.
ss 1502.13, 1502.14. The courts have recognized that these
requirements are interrelated because "the goals of an action
delimit the universe of the action's reasonable alternatives."
City of Burlington v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991).
The setting of the objectives and the range of alternatives to
be considered by an agency are governed by a "rule of
reason." See City of Grapevine v. U.S. Dept. of Transp., 17
F.3d 1502, 1506 (D.C.Cir.1994); City of Burlington v. Busey,
938 F.2d at 195. The Court must uphold "an agency's
definition of objectives so long as the objectives that the
agency chooses are reasonable, and ... uphold its discussion
of alternatives so long as the alternatives are reasonable and
the agency discusses them in reasonable detail." City of
Burlington v. Busey, 938 F.2d at 196.
Plaintiffs assert that the Park Service unfairly narrowed its
objective for the deer management program from the perpet-
uation of historic resources to the control of deer population
so as to eliminate reasonable alternatives. This argument is
not supported in the record. In an internal memorandum
drafted early in the NEPA process, the Park Service asserted
that the objective of the program was "not to reduce the deer
population but to perpetuate the significant elements of the
cultural landscape." Program Review and Project Data
Sheet for Deer Management at GETT, A.R. at 168. In the
Final EIS, the Park Service stated that "a management
action is needed to control the browsing effects of white-tailed
deer in the parks." Final EIS at 13, A.R. at 2210. In the
context of the Storm Report's conclusion that the overbrows-
ing of the deer was threatening the historic resources of
Gettysburg, see Storm Report at 4, A.R. at 220, these state-
ments of objective are the same.
Even if the Park Service's alteration of the objective's
wording were suspicious, any suspicions are allayed by its
thorough consideration of all alternatives. In its draft EIS
and its final EIS, the Park Service initially considered and
rejected a wide range of non-lethal alternatives, including
alternatives such as fencing and altering cropfield patterns as
suggested by plaintiffs. See Draft EIS, A.R. at 1892; Final
EIS, A.R. at 2225-26. The Park Service then proceeded to
evaluate in more detail the five alternatives it considered
most viable. See Final EIS at 30-42, A.R. at 2227-41; see
also supra at note 1. It is apparent from a review of both the
draft EIS and the final EIS that the Park Service weighed all
of the reasonable alternatives and came to a fully-informed
decision. This is all that NEPA requires. See Strycker's
Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28,
100 S. Ct. 497, 62 L. Ed. 2d 433 (1980) (NEPA is only procedur-
al and does not mandate a substantive result); Environmen-
tal Defense Fund v. Massey, 986 F.2d 528, 532 (D.C.Cir.1993)
(NEPA "does not dictate agency policy or determine the fate
of contemplated action").
Plaintiffs raise only one alternative not considered in the
Final EIS--the cutting of the non-historic woodlands pursu-
ant to the draft management plan. This cannot be viewed as
a "reasonable alternative," however, because it would not
further the objective of reducing browsing in historic areas.
As the draft management plan noted, the cutting of the non-
historic woodlands would not reduce the desired deer popula-
tion density. See Draft GMP at 255. Since it is deer
population density that needs to be controlled in order to
preserve the parks' historic resources, cutting the non-
historic woodlands would not further the deer management
program's objective. Furthermore, the record suggests that
cutting non-historic woodlands may even exacerbate the prob-
lem by driving the deer into the historic areas. See Storm
Report at 5, A.R. at 211 (deer displaced by fencing "would be
forced into other areas where their impact would be intensi-
fied"). Cutting the non-historic woodlands therefore is not an
alternative that the Park Service had to consider.
2. Supplemental EIS
An agency is required to prepare a supplemental EIS if
"[t]here are significant new circumstances or information
relevant to environmental concerns and bearing on the pro-
posed action or its impacts." 40 C.F.R. s 1502.09. "[N]ot
every change requires [a supplemental EIS]; only those
changes that cause effects which are significantly different
from those already studied require supplementary consider-
ation." Corridor H Alternatives, Inc. v. Slater, 982 F. Supp.
24, 30 (D.D.C.1997). The decision to prepare a supplemental
EIS is again governed by the "rule of reason" and reviewed
by the courts under the "arbitrary or capricious" standard of
the APA. Marsh v. Oregon Natural Resources Council, 490
U.S. 360, 373-75, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989)
("[A]n agency need not supplement an EIS every time new
information comes to light after the EIS is finalized. To
require otherwise would render agency decisionmaking in-
tractable"). Because the decision whether to prepare a sup-
plemental EIS involves technical issues within the agency's
area of expertise, courts generally "defer to the 'informed
discretion of the responsible federal agencies.' " Id. at 377 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S. Ct.
2718, 49 L. Ed. 2d 576 (1976)).
Plaintiffs argue that the draft management plan, issued
after the preparation of the final EIS, contains new proposals
for managing Gettysburg's historic resources that will have a
significant impact on the deer population, thus requiring the
Park Service to prepare a supplemental EIS. Under the
preferred alternative of the draft management plan, non-
historic woodlands will be cut, other woodlands will be
thinned to take on the appearance of historic woodlots and
new field patterns may reduce the availability of crops to the
deer. See Draft GMP at 122-28. Plaintiffs argue that these
steps will lead to a reduction in the deer population. Once
again, plaintiffs have improperly focused the inquiry. The
deer management program is intended to maintain the deer
population density, not the total deer population. To consti-
tute "significant new circumstances or information" requiring
a supplemental EIS, the draft management plan would have
to have a significant effect on the deer population density
needed to sustain the historic properties of the parks.
Plaintiffs have failed to demonstrate that the draft manage-
ment plan would have any impact on the desired deer popula-
tion density.6 After years of study, the Park Service has
determined that a deer population density of 25 deer per
forested square mile is the appropriate level necessary to
conserve the historic resources of Gettysburg and Eisenhow-
er. The target density is intended to ensure that there are
adequate seedlings to regenerate the young oak and white
ash trees that make up the historic woodlots and to ensure
adequate crop production to "tell the stories" of the parks.
See, e.g., Final EIS at 9,12, A.R. at 2206, 2209. The proposals
in the draft management plan to cut non-historic woodlands,
convert other woodlands into historic woodlots and change
agricultural field patterns do not "cause effects which are
significantly different from those already studied." Corridor
H Alternatives, Inc. v. Slater, 982 F. Supp. at 30. Specifically,
the Park Service found that the historic resources will not be
changed under the draft management plan in a manner that
alters the need to control overbrowsing through the mainte-
nance of the desired deer population density. Because the
Court has no reason to question the exercise of discretion by
the Park Service in its area of expertise, it concludes that the
decision not to prepare a supplemental EIS was not arbitrary
and capricious.7
__________
6. Plaintiffs also contend that the changes in the draft manage-
ment plan might eliminate the need for any shooting because the
deer will be driven outside the parks in search of cover and food.
This contention, however, does not undermine the justification for
the deer management program. If the deer migrate out of the
parks as the plaintiffs contend they will, the Park Service will not
shoot the deer, or will shoot fewer deer, because the deer popula-
tion density will fall to an acceptable level. See also ROD at 5, A.R.
at 3574 ("When the population is reduced to the density goal, fewer
deer will need to be killed annually to maintain the population at
that level").
7. Plaintiffs also argue that the Court should disregard the
arguments the Park Service made for the first time in this Court as
post hoc rationalizations that cannot support its decision. See
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Auto.
C. The National Historic Preservation Act
Under Section 106 of the National Historic Preservation
Act, the Park Service "shall ... take into account" the effects
of any undertaking on a "site ... included in or eligible for
the National Register." 16 U.S.C. s 470f. In assessing the
effects of its undertaking, the Park Service is required to
"afford the Advisory Council on Historic Preservation ... a
reasonable opportunity to comment with regard to such un-
dertaking." 16 U.S.C. s 470f. If the effects are "adverse,"
the agency is required to consider means for alleviating the
impacts after consulting the State Historic Preservation Offi-
cer ("SHPO"), the Advisory Council on Historic Preservation
("ACHP") and the public. 36 C.F.R. s 800.5. "Adverse
effects" are defined as any "effect on a historic property
[that] may diminish the integrity of the property's location,
design, setting, materials, workmanship, feeling, or associa-
tion" and expressly include the "[i]ntroduction of visual, audi-
ble, or atmospheric elements that are out of character with
the property or alter its setting." 36 C.F.R. s 800.9(b). The
requirements of Section 106, however, do not require the
Park Service to engage in any particular preservation activi-
ties; rather, Section 106 only requires that the Park Service
consult the SHPO and the ACHP and consider the impacts of
its undertaking. See Nat'l Trust for Historic Preservation v.
Blanck, 938 F. Supp. 908, 918 (D.D.C.1996) ("Section 106 is
universally interpreted as requiring agencies to consult and
consider and not to engage in any particular preservation
activities per se").
__________
Ins. Co., 463 U.S. at 50. It appears from the record, however, that
the Park Service never made the arguments before because plain-
tiffs never requested a supplemental EIS or argued that one was
required until they raised the issue in this Court. Because the
decision whether a supplemental EIS is required should be made
initially by the agency, not by a reviewing court, plaintiffs should
have made a request to the Park Service and allowed it to make a
decision. Friends of the River v. FERC, 720 F.2d 93, 109 (D.C.Cir.
1983). Nevertheless, the Court need not consider the effect of
plaintiffs' failure to raise the issue earlier because it rejects the
request on its merits. Id.
Plaintiffs do not argue that the Park Service failed to
comply with the procedural requirements of Section 106.
Instead, they assert that the Park Service in its review
process ignored the primary argument presented by plain-
tiffs. Specifically, during the review process, plaintiffs main-
tained that the deer management program's effect on Get-
tysburg's "quiet contemplative atmosphere" was an adverse
effect under the regulations of the Advisory Council on His-
toric Preservation. Plaintiffs based this argument on an ex-
cerpt from the National Register for Historic Places Bulletin
on historic battlefields which described battlefields as "places
of quiet contemplation." National Register for Historic
Places Bulletin No. 40, Guidelines for Identifying, Evaluat-
ing, and Registering America's Historic Battlefields ("Bulle-
tin No. 40"), Plaintiffs' Exhibit G at 3. Because the SHPO,
the ACHP and the Keeper of the National Register did not
address or even mention Bulletin No. 40 in reviewing the
deer management program, plaintiffs maintain that the find-
ing of no "adverse effect" is unlawful under the APA be-
cause a "relevant factor" was not considered. See Motor
Vehicle Manufacturers Ass'n v. State Farm Mutual, 463
U.S. at 43.8
A review of the record, however, demonstrates that plain-
tiffs' arguments were considered. While it did not specifically
refer to plaintiffs' argument or to Bulletin No. 40, the Park
Service found in its original determination that there was no
adverse effect on the setting, feeling or association of Gettys-
burg or Eisenhower from the proposed deer management
program. See Letter from John A. Latschar, Superintendent
of Gettysburg National Military Park to Brenda Barrett, A.R.
at 6317-19 ("Audible effects are temporary, limited, propor-
tionally decreasing, and minimized by muzzle suppressors").
An evaluation of the setting, feeling or association of the
parks necessarily would include an evaluation of the deer
__________
8. On this issue, the parties are like ships passing in the night.
Nowhere in the arguments made by defendants before this Court
do they even address Bulletin No. 40.
management program's effect on Gettysburg's "quiet con-
templative atmosphere."
When the SHPO and the ACHP reviewed the determina-
tion of the Park Service, they received lengthy submissions
from plaintiffs that fully discussed their argument and Bulle-
tin No. 40. See Letter from Katherine Meyer to Dr. Brent
D. Glass and Brenda Barrett, A.R. at 6363-70; Letter from
Katherine Meyer to John Fowler, Executive Director of
Historic Preservation, A.R. at 6380-6435. Each of the re-
viewers approved the finding of no adverse effect. While the
decisions do not mention Bulletin No. 40, the reviewers did
discuss National Register Bulletin No. 38, addressing the
contention that Gettysburg is a "traditional cultural proper-
ty." Viewed in context, this was merely a recharacterization
of plaintiffs' argument rather than a neglect of it. See Letter
from Donald Klima, Advisory Council on Historic Preserva-
tion to Carol Shull, Keeper of the National Register of
Historic Places, A.R. at 6464-65 ("We note that the attributes
cited [by plaintiffs' counsel] include values more often associ-
ated with traditional cultural properties, as opposed to other
National Register properties, insofar as they depend, to a
certain degree, upon the perceptions and beliefs of those who
attribute sacred values to this property"); see also Letter
from Carol D. Shull, Keeper of the National Register to
Donald Klima, Advisory Council on Historic Preservation,
A.R. 6506-07; Letter from Donald Klima, Advisory Council
on Historic Preservation, to John A. Latschar, Superinten-
dent of Gettysburg National Military Park, A.R. 6504-05.
This recharacterization, coupled with the reviewers' concur-
rence with the Park Service finding of no "adverse effect" on
Gettysburg's setting, feeling or association, suggests that the
SHPO and the ACHP fully considered plaintiffs' submissions,
including the argument under Bulletin No. 40. The Court
concludes that the Park Service complied with the APA by
considering all relevant factors, including plaintiffs' argu-
ments, in its review of the effects of the deer management
program under the NHPA.
An Order consistent with this Opinion is entered this same
day.
SO ORDERED.