Grunewald v. Jarvis

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAROL GRUNEWALD, et al.,
Plaintiffs,
v. Civil Action No. 12-cv-1738 (RLW)
JONATHAN B. JARVIS, DIRECTOR,
NATIONAL PARK SERVICE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs—five Washington, DC residents and an animal rights organization—have sued
the National Park Service and Department of the Interior over a plan to reduce the deer
population in Washington, DC’s Rock Creek Park that will likely involve shooting and killing
deer either with guns or with bows and arrows. Plaintiffs claim that the government, in
developing its plan, failed to comply with the laws establishing the Park itself and the Park
Service, as well as the National Environmental Policy Act, and bring this action under the
Administrative Procedure Act. Moreover, the Plaintiffs are concerned that implementation of the
plan would turn the Park “into a killing field.” (Dkt. No. 1, at 2). The parties have both moved
for summary judgment, and the case is now ripe for a decision. Based upon the Court’s review
of the Administrative Record, the parties’ briefs, the relevant law, and the arguments of counsel
during the hearing held on March 4, 2013, and for the reasons stated below, the Defendants’
Motion for Summary Judgment (Dkt. No. 18) is GRANTED and Plaintiffs’ Motion for
Summary Judgment (Dkt. No. 13) is DENIED.
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I. Factual Summary
A. Management of National Parks
In 1890, before the National Park Service existed, the federal government created one of
the first federal parks in the nation in Washington, DC. See Rock Creek Park Enabling Act, Ch.
1001, 26 Stat. 492 (1890). Additional land has been set aside and added to the park since that
time, and the whole area is commonly referred to as Rock Creek Park. (See AR 16488-93). The
final section of the Enabling Act states that the park:
shall be under the joint control of the Commissioners of the District of
Columbia and the Chief Engineers of the United States Army, whose duty
it shall be, as soon as practicable, to lay out and prepare roadways and
bridle paths, to be used for driving and for horseback riding, respectively,
and footways for pedestrians; and whose duty it shall also be to make and
publish such regulations as they deem necessary or proper for the care and
management of the same. Such regulations shall provide for the
preservation from injury or spoliation of all timber, animals, or curiosities
within said park, and their retention in their natural condition, as nearly as
possible.
Ch. 1001, § 7, 26 Stat. 492 (1890). “Thus, from its inception Rock Creek Park became a
landscape that combined the conservation and recreational missions of the wilderness preserve
and urban park.” (AR 776).
Around 26 years later, Congress passed legislation that the President signed establishing
the National Park Service. The statute, known as the Park Service’s Organic Act, states that the
newly formed agency “shall promote and regulate the use of the Federal Areas known as national
parks . . . by such means and measures as conform to the fundamental purpose of the said parks .
. . which purpose is to conserve the scenery and the natural and historic objects and the wild life
therein and to provide for the enjoyment of the same in such manner and by such means as will
leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. Such “means
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and measures” include, at the discretion of the Secretary of the Interior, “the destruction of such
animals and of such plant life as may be detrimental to the use of any of said parks . . . .” Id. § 3.
Congress later clarified the relationship between a park’s enabling statute and the Park
Service’s Organic Act. Congress provided that the various national parks, “though distinct in
character, are united through their inter-related purposes and resources into one national park
system as cumulative expressions of a single national heritage . . . and administration of these
areas . . . shall not be exercised in derogation of the values and purposes for which these various
areas have been established, except as may have been or shall be directly and specifically
provided by Congress.” Id. § 1a-1. As the Chief Judge of this court has stated, “as Congress has
delegated the administration and preservation of national park resources to Interior and the Park
Service, these agencies enjoy broad discretion in implementing their statutory responsibilities
under the authorizing statutes.” Edmonds Inst. v. Babbitt, 93 F. Supp. 2d 63, 69 (D.D.C. 2000)
(citations omitted). And as the Supreme Court has noted, “the complete power that Congress has
over public lands necessarily includes the power to regulate and protect the wildlife living there.”
Kleppe v. New Mexico, 426 U.S. 529, 540-41 (1976) (internal quotation marks and citation
omitted).
The National Environmental Policy Act (“NEPA”), enacted in 1970, is a broad and far
reaching statute that impacts the government’s actions not just with respect to national parks, but
to all major environmental actions. See 42 U.S.C. §§ 4321-4370f. NEPA requires the
preparation of an Environmental Impact Statement (“EIS”) for “major Federal actions
significantly affecting the quality of the human environment.” Id. § 4332(2)(C); 40 C.F.R. §
1501.4. If a federal agency determines that an EIS is necessary, the resulting document must
detail the “environmental impact of the proposed action,” “any adverse environmental effects
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which cannot be avoided should the proposal be implemented,” and “alternatives to the proposed
action.” 42 U.S.C. § 4332. The EIS must include environmental effects of a decision, whether
direct, indirect, or cumulative. See 40 C.F.R. § 1508.25(c). An agency’s ultimate decision must
identify all alternatives considered, and “whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted, and if not, why they were
not.” Id. § 1505.2. In addition, NEPA contemplates a role for the public “in both the
decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989). In a NEPA challenge, “[t]he role of the courts is
simply to ensure that the agency has adequately considered and disclosed the environmental
impact of its actions and that its decision is not arbitrary or capricious.” Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983) (citation omitted). “NEPA merely
prohibits uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at 351.
B. Information about Rock Creek Park
Rock Creek Park spans approximately 2,100 acres, and consists of forest, creek, and
various landscaped areas. (See AR 16484-86, 16492). Approximately 2 million people visit the
Park each year. A variety of wildlife lives in the park, including white-tailed deer, raccoons,
foxes, squirrels, and chipmunks. (AR 16489). In total, scientists believe there are 36 species of
mammals, 181 species of birds, and 19 species of reptiles and amphibians present in the park.
(Id.).
Not long ago, it appears that Rock Creek Park may have had no deer. When the federal
government established Rock Creek Park in 1890, there were “probably” no deer in the Park.
(See AR 10208 (“Deer populations in the Piedmont were probably extirpated by the late
1800s.”)). But deer eventually began to return. In the decade of the 1960s, when deer were first
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spotted again, observation records from Park staff indicate only four sightings of deer. (See AR
16495). By the early 1990s, however, “deer sightings were so prevalent that that observation
cards were no longer completed.” (AR 16495). As of 2009, the Park Service estimated that
Rock Creek Park currently had 67 deer per square mile, thus approximately 314 deer. (See AR
16497).
Deer are herbivores that eat food found anywhere between the ground and up to about six
feet in height. (See AR 20043). When there are too many deer, a visible browse line can be
detected “at approximately six feet above the ground below which most or all vegetation has
been uniformly browsed.” (Id.). The “Rock Creek Park Final White-Tailed Deer Management
Plan” includes a photograph with a caption noting that “[d]eer have browsed a considerable
amount of the understory at Rock Creek Park.” (AR 16495).
Since the Park implemented distance sampling, believed to be the most accurate method
for determining the population of deer in the Park, the number of deer has fluctuated between 60
and 98 deer per square mile. (AR 16497). “Research has shown that deer density in excess of
18 deer per square mile of forest has devastating consequences on regeneration.” (AR 20775).
For Rock Creek Park, scientists have estimated that a deer density of fifteen to twenty deer per
square mile is one that would best balance having and maintaining a viable deer population while
also allowing the Park’s forest to naturally regenerate. The scientists behind this estimation of
fifteen to twenty deer per square mile referred to it as “an initial goal, meaning it should be
adjusted during the life of the plan based on the findings of the vegetation monitoring to ensure
that the management goals are met.” (AR 10228).
Scientists have also been conducting research on the health of vegetation in Rock Creek
Park for over twenty years. Data reveal several significant changes over that time. For example,
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tree and shrub cover less than two meters (about 6.5 feet) decreased from 46.24% cover in 1991
to 13.90% in 2007. (AR 12685). In addition, scientists have recommended a 67% seedling
stocking rate as necessary for proper forest regeneration. (AR 20739). By 2007, the stocking
rate as measured in Rock Creek Park had fallen to 2.26%. (AR 16498).
There is no doubt that Rock Creek Park faces more than one threat to its ecological
health. For example, and as particularly relevant in this litigation, exotic species are a problem
in park management generally, and Rock Creek Park is no exception. The exotics problem in
Rock Creek Park “was recognized as early as the 1970s.” (AR 5299). Research conducted in
the late 1990s in the Park and summarized in a report published in 2000 referred to the problem
as “the most serious natural resource management problem in Rock Creek Park” and a “top
management priority.” (AR 3596-97). The source of many of the most aggressive exotic plants
is “landscaped private properties” abutting the Park. (AR 3596). In 2004, the Department of the
Interior published a draft version of an “Invasive Exotic Plant Management Plan.” (AR 5297-
5386). The 2004 report notes that, although “total eradication [of exotic plants] is an unrealistic
goal,” Park “staff have implemented an exotics management program.” (AR 5300-01). As part
of their research, Park staff installed deer exclosures “to directly determine the effects of deer on
the forest. These will be used within the exotics program to estimate whether and how deer
impact exotic plant populations.” (AR 5306). Another mention of deer in the 2004 report occurs
when talking about the invasive plant Japanese Barberry; it states that “infestations [of Japanese
Barberry] will increase in size, density and number, possibly aided by the park’s large whitetail
deer population.” (AR 5338). The Park noted the problem with exotics again in a 2005 General
Management Plan. It stated that because a program underway to treat the exotics problem with
herbicides is only “in a limited portion of the park,” “control efforts are not able to keep pace
6
with the rate of invasive plant introduction and spread. Management of invasive species will be
a continuous need in the park and operational plans will be updated as control strategies and
funding evolve.” (AR 18773).
C. Development of the Final Environmental Impact Statement (“FEIS”)
As part of a NEPA planning process, in 2005 Rock Creek Park staff convened a Science
Team that “evaluated scientific literature and research on the topic of deer management;
established a monitoring protocol for park deer populations and other park resources; and
recommended resource thresholds at which deer management strategies would be implemented.”
(AR 17171). In September 2006, the Park Service published a notice in the Federal Register
regarding the agency’s intent to prepare a “White-tailed Deer Management Plan Environmental
Impact Statement, Rock Creek Park, Washington, DC.” (AR 9020-21).
To address concerns about the impact of deer, the Park Service prepared a draft
Environmental Impact Statement (“DEIS”) and published it in 2009. While acknowledging that
deer are an “important park resource,” (AR 13726), the Park Service nonetheless proposed
reducing the number of deer in Rock Creek Park “to support forest regeneration and to protect,
conserve, and restore native species and cultural landscapes,” (AR 13742). The DEIS noted
problems observed from the Park’s deer population, including “a decline in tree seedlings caused
by excessive deer browsing and the ability of the forest to regenerate in Rock Creek Park;
excessive deer browsing impacts on the existing shrubs and herbaceous species; and deer impact
on the character of the park’s cultural landscapes.” (AR 13675).
In the DEIS, the Park Service focused on four options regarding deer management. (AR
13675). Alternative A proposed by the Park Service was to take no new action. Alternative B
was to use non-lethal actions, including fences and reproductive control agents. Alternative C
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was to use sharpshooting as well as other related methods where sharpshooting would not be
appropriate. And finally the fourth option proposed, Alternative D—which the Park Service
noted was its preferred alternative—would combine the second and third options, initially using
lethal methods followed by population maintenance via reproductive control, as feasible. The
Park Service made the DEIS available for public review and comment. (AR 13675). It received
many comments from the public and interested organizations, and there is no doubt that the
majority of comments received opposed killing any deer. (See AR 17740).
Ultimately, after considering the comments received in response to the DEIS, the Park
Service published an FEIS that declared its intention to implement Alternative D. (AR 16450-
17041). It rejected Alternative A because this would result in a larger deer population, and with
it more severe adverse ecological impacts. (See generally AR 16459-67 (summarizing impacts)).
The Park Service rejected Alternative B for several reasons, including that, at this time, the
technology available would reduce the deer population too slowly, thus allowing adverse impacts
to persist for an unacceptably long time. (Id.). It rejected Alternative C because the agency felt
that going forward a combination of methods might work best, and choosing to have no
flexibility would unnecessarily hamper long-term management. (Id.). Implementation of
Alternative D would result in around 70 deer in the Park after three years, the target number the
Park Service plans to maintain. (AR 16548). The agency did state that “[i]f an acceptable
reproductive control agent becomes available sooner than expected, the park could select to use
that first . . . .” (AR 17732).
D. Procedural History of This Litigation
Through the FEIS, the Park Service indicated it planned to begin implementation of
Alternative D in December 2012, but Plaintiffs filed this action in October 2012. (See Dkt. No.
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1 at ¶ 50). Plaintiffs’ initial Complaint alleged violations by the Park Service of the Rock Creek
Park Enabling Act, the Organic Act of the National Park Service, the National Environmental
Policy Act, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500-706, and sought to
“[p]reliminarily and permanently enjoin Defendants’ removal of white-tailed deer by shotgun,
archery, or other means, unless and until” Defendants comply with all laws. (Dkt. No. 1, at 17).
After the parties met and conferred, the Defendants agreed to postpone implementation of the
FEIS. (See Dkt. No. 6). This Court agreed to an expedited schedule on cross-motions for
summary judgment in order to have a decision before March 15, 2013. (Id.). Both Plaintiffs’
and Defendants’ motions are now fully briefed, and the issue is ripe for decision. 1
II. Motion for Summary Judgment
Neither the Rock Creek Park Enabling Act, nor the Park Service’s Organic Act, nor
NEPA provides a private right of action or waiver of sovereign immunity. Thus Plaintiffs’
claims depend on the government’s waiver of sovereign immunity in the APA. The APA
requires a court to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” as well as action adopted “without
observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). When ruling on summary
judgment motions in a case involving final review of an agency action under the APA, the
standard set forth in Federal Rule of Civil Procedure 56(c) does not apply because of the limited
role of the court in reviewing the administrative record. 2 See Charter Operators of Alaska v.
Blank, 844 F. Supp. 2d 122, 126-27 (D.D.C. 2012). Instead, summary judgment serves as a
1
In addition, Plaintiffs moved to supplement the Administrative Record in this case, which
this Court denied, (Dkt. No. 26), and Plaintiffs moved to file an Amended Complaint (See Dkt.
No. 15, Ex. A).
2
Local Rule 7(h)(1) requires that a party moving for summary judgment attach a
Statement of Undisputed Facts. In cases where judicial review is based solely on the
administrative record, however, a Statement of Undisputed Facts is not required. LCvR 7(h)(2).
9
mechanism for deciding, as a matter of law, whether the administrative record supports the
agency action and whether the agency action is consistent with the APA standard of review. See
Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).
“[T]he function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” Cottage
Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 90 (D.D.C. 2009) (citation omitted). The district
court must “review the administrative record to determine whether the agency’s decision was
arbitrary and capricious, and whether its findings were based on substantial evidence.” Forsyth
Mem’l Hosp., Inc. v. Sebelius, 639 F.3d 534, 537 (D.C. Cir. 2011) (citing Troy Corp. v.
Browner, 120 F.3d 277, 281 (D.C. Cir. 1997)). A court must “perform a searching and careful
inquiry into the facts underlying the agency’s decision,” but “will presume the validity of agency
action as long as a rational basis for it is presented.” Am. Farm Bureau Fed’n v. EPA, 559 F.3d
512, 519 (D.C. Cir. 2009) (citations and quotation marks omitted). “The Court is not empowered
to substitute its judgment for that of the agency.” Davis v. Latschar, 202 F.3d 359, 365 (D.C.
Cir. 2000) (citations omitted). This is especially so in the context of matters involving complex
scientific issues. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).
III. Analysis
Plaintiffs make several claims in their summary judgment briefing that all fail to
persuade. First, they claim to have “demonstrated” that there is no current overpopulation of
deer in Rock Creek Park. (Dkt. No. 24, at 8). This is flatly contradicted by the Administrative
Record. Second, they misinterpret the Park’s Enabling Act to mean that killing deer should be
prohibited when other options are available to reduce the deer population’s size. Third, they
claim the Park Service failed to address the issue of exotic plants in the FEIS, when the
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Administrative Record generally and the FEIS specifically clearly and repeatedly address
concerns regarding exotics. Fourth, they falsely claim that the Park Service failed to consider
various issues about visitor enjoyment of the Park. And finally, they claim that the Park Service
did not give due consideration to alternatives to killing deer, notably reproductive controls, when
the Administrative Record reveals that the Park Service considered such controls and found that
they are not currently feasible for controlling the deer in Rock Creek Park. The Court will
address these issues in turn.
A. Size of the Deer Population
Plaintiffs state that “according to the Park Service’s own records, there is no
overpopulation of deer that is currently impairing any of the Park’s resources . . . .” (Dkt. No.
13, at 9). This allegation is contradicted by the voluminous production in this case. The FEIS
and the Administrative Record repeatedly and unequivocally state that deer are currently
impairing the Park.
Plaintiffs suggest that the FEIS only talks about future problems by selectively quoting
portions of the FEIS that speak in the future tense. (See, e.g., Dkt. No. 13, at 36 (“[A]n
overabundance of deer in Rock Creek Park could adversely affect regeneration of vegetation in
riparian areas.”) (quoting AR 16508) (emphasis added by Plaintiffs)). This unfairly represents
the record. Granted, there is language in the FEIS about the future. But the document is forward
looking, so not only is this not surprising, it is necessary. The larger point, however, is that
Plaintiffs’ representation that “the deer in Rock Creek Park pose no threat to the Park now,”
(Dkt. No. 13, at 37) (emphasis in original), is belied by the Administrative Record and the FEIS.
One does not have to look very far to find that adverse impacts to the Park are not a thing of the
future, but of the present. “The large numbers of white-tailed deer within the park are resulting
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in a substantial effect on the park ecosystem due to the deer’s heavy browsing of vegetation.”
(AR 16457). Not will result. Are resulting. “[D]eer are affecting the integrity of the understory
structure and species composition, diminishing the value of habitat for other wildlife.” (AR
16508). Not will affect. Are affecting. “[W]hite-tailed deer are having a detrimental effect on
the structure and species richness of native plants in this forest, and as a consequence,
diminishing the value of the habitat for wildlife.” (AR 9476). Not will have. Are having.
Plaintiffs claim that “according to the Park Service’s own records, there is no overpopulation of
deer that is currently impairing any of the Park’s resources . . . .” (Dkt. No. 13, at 9). This
conclusion cannot be reached without ignoring or distorting the record.
Further, Plaintiffs ignore the conclusion of scientists that a browse line need not be
prominent before a threat to Park health is imminent. Plaintiffs rightly note that the Park Service
has stated that “the browse line is not prominent at Rock Creek Park.” (Dkt. No. 13, at 16
(quoting AR 17731) (emphasis removed)). But the quote is taken out of its context. In full, the
quote reads: “These impacts [of significantly lower levels of vegetation] can be directly
attributed to deer browsing and indicate deer are affecting the integrity of the understory
structure and species composition, diminishing the value of habitat for other wildlife. While
there is some understory vegetation and the browse line is not prominent at Rock Creek Park,
trends indicate that an unmanaged deer population could lead to these problems, which are
currently being faced by similar eastern national parks.” (AR 17731). Plaintiffs seem to suggest
that the Park Service should not be overly concerned because the browse line is not yet
prominent. While this may be Plaintiffs’ view, it is not the view held by scientists. “Because
overabundant deer can cause severe, long-term impacts that are difficult to reverse, ecologists
should persuade managers to reduce deer numbers before and not after such impacts become
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evident.” (AR 5772). The logic of scientists with respect to this issue has been followed by
other courts as well. See, e.g., Wilkins v. Sec’y of the Interior, 995 F.2d 850, 853 (8th Cir. 1993)
(interpreting 16 U.S.C. § 3 to mean that “[the Secretary] need not wait until the damage through
overbrowsing has taken its toll on the park plant life and deer herd before taking action no less
than [the Secretary] would be required to delay the destruction of a vicious animal until after an
attack on a person.” (citation omitted)).
Plaintiffs also claim that “the Park Service’s speculation about future harm was
predicated upon a significant increase in the current deer population.” (Dkt. No. 13, at 37)
(emphasis in original). But the Park Service has stated that the deer population is too high at
current levels, and is having an adverse impact now. Because the deer population is too high
now, the Park Service maintains, a significant increase in the deer population would make a bad
situation worse. Plaintiffs cite to a 1999 National Park Service fact sheet to support their
argument, which states that “[e]vidence of high deer densities or heavy vegetative browsing does
not necessarily mean deer are causing unacceptable harm to park resources.” (Dkt. No. 13, at 38
(quoting AR 3572) (emphasis removed)). But Plaintiffs omit the critical sentence immediately
following: “Rather, park managers must determine that deer are impairing the park’s ability to
achieve management objectives and reach goals.” (AR 3572). That is exactly what the Park
Service has done with respect to Rock Creek Park.
Plaintiffs misrepresent the 1999 Fact Sheet in another way as well. They state, “as the
Park Service itself informed the public years ago, the agency must have ‘scientific data on
environmental conditions that suggest deer as the principal cause for not achieving’ the Park’s
objectives before it may kill this wildlife . . . .” (Dkt. No. 13, at 39 (quoting AR 3572-73))
(emphasis added by Plaintiffs). But this is a distortion of what the Fact Sheet says. Rather, the
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Fact Sheet is answering its own question of why deer are not managed in all parks even though
there may be high deer densities. The answer provided is that deer are not managed in all parks
“either because specific goals have not been identified and objectives of natural-resource
managers have not been quantified or” for the reason Plaintiffs cite. (AR 3572-73). Here, the
Park Service has identified specific goals and objectives in its FEIS. Plaintiffs’ omission when
quoting this Fact Sheet alters its meaning.
Plaintiffs claim that the science relied upon by the Park Service “clearly” “cannot identify
deer, to the exclusion of other sources . . . as the cause of the unnatural decline in native plant
species.” (Dkt. No. 13, at n.9). For example, they claim that a report in the record published by
the National Park Service titled “Impacts of Deer Herbivory on Vegetation in Rock Creek Park,
2001-2009),” (AR 15219-59), omits data necessary to document significant impacts due to deer,
(See Dkt. No. 13, at n.9). This misses a major point of the study, however: the deer are having
negative impacts on Rock Creek Park. The report clearly and unequivocally concludes: “Data
from the first 9 years of the Rock Creek Park herbivory study indicate that deer herbivory is
having significant negative impacts on forest vegetation in the park.” (AR 15236).
B. Rock Creek Park Enabling Act & National Park Service Organic Act
The parties dispute the meaning of the language in Section 7 of the Rock Creek Park
Enabling Act. Plaintiffs argue that because the language in the statute creating Rock Creek Park
states the federal government must “preserv[e] from injury . . . all . . . animals . . . in their natural
condition, as nearly as possible,” that the Park Service’s plan to kill deer violates the statute
because other options are available to the agency. Defendants, meanwhile, argue the statute does
not limit the agency from killing deer despite the alleged availability of other options. To
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resolve this dispute over the meaning of the statute, the familiar language from Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., helps guide the analysis:
When a court reviews an agency’s construction of the statute which it
administers, it is confronted with two questions. First, always, is the
question whether Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court determines Congress
has not directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would be necessary
in the absence of an administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible
construction of the statute.
467 U.S. 837, 842-43 (1984) (footnotes omitted). Under Chevron step one, if the statute is clear
and unambiguous, the analysis for the court ends, and that clear and unambiguous Congressional
language controls. If that is not the case, the analysis shifts to Chevron step two, whereby a
“court must defer to the agency’s interpretation so long as it is reasonable, consistent with the
statutory purpose, and not in conflict with the statute’s plain language.” Coal Emp’t Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).
Plaintiffs argue that the language to protect animals “as nearly as possible” is
incompatible with killing deer when other options are available. Plaintiffs repeatedly quote the
“as nearly as possible” language throughout their summary judgment brief. (See Dkt. No. 13, at
11, 12, 35, 36 n.8, 39, 41). But context matters. The Enabling Act does not direct the
government to protect animals “as nearly as possible” in every situation, no matter what.
Instead, the language comes in the following sentence: “Such regulations shall provide for the
preservation from injury or spoliation of all timber, animals, or curiosities within said park, and
their retention in their natural condition, as nearly as possible.” Ch. 1001, § 7, 26 Stat. 49215
(1890). Determining when the Park Service shall preserve animals “as nearly as possible,” then,
pursuant to the Enabling Act, requires an understanding of the reference to “[s]uch regulations.”
The regulations referred to are found in the previous sentence of the statute, and do not
clearly refer to deer management. There, the statute states that the government has the duty to
“lay out and prepare roadways and bridle paths, to be used for driving and for horseback riding,
respectively, and footways for pedestrians; and whose duty it shall also be to make and publish
such regulations as they deem necessary or proper for the care and management of the same.
Such regulations . . . .” Ch. 1001, § 7, 26 Stat. 492 (1890) (emphasis supplied). Deference to a
park’s Enabling Act is proper when it “directly and specifically” speaks to issues contrary to the
“values and purposes” of the broader national park system. See 16 U.S.C. § 1a-1. When
speaking of preservation “as nearly as possible,” Congress did so in the context of laying out of
roads and paths. This is not related to deer management, and thus falls outside of Chevron step
one when trying to determine its application to deer management.
Plaintiffs take issue with this analysis in their Reply Brief, but they miss the mark. The
issue at Chevron step one is whether Congress has “directly spoken” to the “precise question at
issue.” In their summary judgment brief, Plaintiffs make their own Chevron step one argument,
claiming that the Park’s Enabling Act is a “command” that “requires the agency to refrain from
killing the native wildlife in the Park unless it has no other option available to preserve the other
resources of the Park.” (Dkt. No. 13, at 35). Defendants responded by arguing that Congress
had not spoken to this issue directly; that is, the Enabling Act does not clearly set out how the
Park should manage resources to maintain a natural condition, nor did Congress define “as
nearly as possible.” (See Dkt. No. 18, at 40-44). Yet Plaintiffs criticized the agency’s position
by citing cases that deal with Chevron step two. (See Dkt. No. 24, at 12-13 (citing Defenders of
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Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir. 2001), which calls the statute at issue in that
case “inherently ambiguous,” and S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 827
(10th Cir. 2000), which notes “we cannot resolve the issue before us under step one of Chevron;
instead we must reach step two.”)). Also, Plaintiffs are incorrect when they claim that
Defendants have offered an interpretation of the Enabling Act inconsistent with prior agency
action. Plaintiffs have made no demonstration, nor could they, that the Park Service has ever
represented that the Enabling Act prohibits the culling of one species of animal so as to protect
other plant and animal species in the Park.
Because the language in Section 7 of the Park’s Enabling Act does not speak directly to
deer management, the analysis proceeds to Chevron step two: “whether the agency’s [action] is
based on a permissible construction of the statute.” 467 U.S. at 843. Because the Enabling Act
does not speak directly to the issue of deer management, and thus does not conflict with the Park
Service’s Organic Act, the agency’s interpretation of the Enabling Act to require a balanced
approach to protecting all animals and vegetation in the park is permissible. The FEIS is
designed to maintain a population of white-tailed deer in balance with other resources. This
accords with the language of the Enabling Act, which refers to the preservation of all timber and
animals, not just some. Thus, the Park Service’s interpretation is entitled to deference.
The Park Service’s interpretation of the Enabling Act makes even more sense when
viewed in conjunction with the agency’s Organic Act. Congress’ lack of explicit instruction with
respect to deer management in the Enabling Act—no surprise given that deer likely did not exist
in the Park when Congress passed the statute—further clarifies that Congress vested the Park
Service with discretion under the Organic Act “to conserve the scenery and the natural and
historic objects and the wildlife therein . . . in such manner and by such means as will leave them
17
unimpaired for the enjoyment of future generations.” 16 U.S.C. § 1. In one sense, this language
is analogous to Section 7 of the Park’s Enabling Act. But it is modified in a critical way: the
Organic Act provides, at the discretion of the Secretary of the Interior, “for the destruction of
such animals and of such plant life as may be detrimental to the use of any . . . parks . . . .” 16
U.S.C. § 3. Courts have frequently found this authority allows the Park Service to reduce deer
populations. See, e.g., Davis v. Latschar, 83 F. Supp. 2d 1 (D.D.C. 1998), aff’d 202 F.3d 359(D.C. Cir. 2000); Friends of Animals v. Caldwell, No. 2:09-cv-5349, 2010 WL 4259753 (E.D.
Pa. Oct. 27, 2010).
In Plaintiffs’ summary judgment motion, they allege Defendants violated NEPA and the
Park’s Enabling Act, but do not allege a violation of the National Park Service’s Organic Act.
Although Plaintiffs’ Complaint alleges a violation of the Organic Act, their summary judgment
motion contains two argument sections: one on an alleged violation of the Enabling Act, and the
other on alleged violations of NEPA. The only mention of the Organic Act is a blatant
misrepresentation that “the Park Service fail[ed] even to invoke Section 3 of the organic statute
as the basis for killing the deer.” (Dkt. No. 13, at 41 n.11). This is simply not true. Not only
does the FEIS cite and quote 16 U.S.C. § 3, (AR 16493), but the agency notes that “[i]n defining
this discretion, the 10th Circuit Court of Appeals overturned a district court decision, holding in
part that the NPS ‘need not wait until the damage through overbrowsing has taken its toll on park
plant life . . . before taking preventative action.’ N.M. State Game Comm’n v. Udall, 410 F.2d
1197, 1201 (10th Cir. 1969). “This discretion has been reinforced over time.” (Id.).
Although not addressed in their initial brief, Plaintiffs seek to revive their Organic Act
argument in their Opposition/Reply brief. (Dkt. No. 24, at 30-33). In so doing, their argument
focuses on whether the government failed to account for the possibility that shooting and killing
18
deer would “diminish opportunities for current or future generations to enjoy . . . or be inspired
by park resources or values.” (Dkt. No. 24, at 31 (quoting AR 7606) (emphasis removed)). This
is essentially a repackaging of one of Plaintiffs’ NEPA claims, as discussed below. As a matter
of civil procedure, Plaintiffs have waived any Organic Act argument. See, e.g., Grenier v.
Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“Even an issue raised in the complaint
but ignored at summary judgment may be deemed waived.”); see also John C. Flood of Va., Inc.,
v. John C. Flood, Inc., 700 F. Supp. 2d 90, 96 n.4 (D.D.C. 2010), aff’d, 642 F.3d 1105 (D.C. Cir.
2011) (rejecting theories not raised in summary judgment motion “even if alluded to in the
Complaint”). Although this Organic Act claim need not be considered because it is not properly
before the Court, the claim would fail anyway because the government did account for the
considerations raised by Plaintiffs when it explained how it would seek to minimize the impact
of its activity by acting when visitation was low, using noise suppression technology, and other
methods. (AR 16732). This same issue is discussed, properly, in the Court’s NEPA analysis.
C. National Environmental Policy Act (“NEPA”)
1. Nonnative, Exotic Plants
NEPA requires that an agency identify the purpose and need for action. See 40 C.F.R. §
1502.13. The Park Service identified eleven objectives of the FEIS. (AR 17730). It stated the
purpose was “to develop a white-tailed deer management strategy that supports long-term
protection, preservation, and restoration of native vegetation and other natural and cultural
resources in Rock Creek Park.” (AR 17729). Plaintiffs do not offer any serious challenge to the
agency’s purpose or objectives. Given that courts evaluate agency objectives “with considerable
deference to the agency’s expertise and policy-making role,” City of Alexandria v. Slater, 198
F.3d 862, 867 (D.C. Cir. 1999), and the lack of significant debate on this point, this Court finds
19
that the Park Service’s objectives are reasonable, see Theodore Roosevelt Conservation P’ship v.
Salazar, 744 F. Supp. 2d 151, 161 (D.D.C. 2010). In addition, the government notes it examined
a wide range of direct and indirect impacts of Alternative D, including impacts on “vegetation;
soils and water quality; wetlands and floodplains; wildlife and wildlife habitat; rare, unique,
threatened, or engendered species; cultural landscapes; soundscapes; visitor use and experience;
visitor and employee safety; [and] socioeconomic resources.” (Dkt. No. 18, at 63 (citing AR
17318-427)). This list, and the analysis of these issues in the FEIS, indicates that the
government took the requisite “hard look” at the potential consequences of its proposed action,
as required by NEPA. See Robertson, 490 U.S. at 350. But there is one item in particular left
off this list that Plaintiffs challenge.
A major criticism Plaintiffs offer with respect to Defendants’ compliance (or, in their
view, lack thereof) of NEPA is that the government failed to consider the management of deer in
conjunction with the Park’s problems with exotic species. The government argues initially that
Plaintiffs’ NEPA argument with respect to exotic species is not properly before this Court
because Plaintiffs failed to make the government aware of the issue. (Dkt. No. 18, at 65). On
this point, the government’s argument is rejected. The government cannot legitimately claim
surprise that properly dealing with the issue of exotic species formed an important part of the
FEIS. For example, the index of the FEIS includes 31 entries for “exotic plant.” (See AR
17039). The import of the issue should not have been lost on the government. Thus two
questions remain: did the government need to address exotics and deer management
simultaneously, and did they properly address exotics in the FEIS.
First is the issue of whether the government needed to address exotics and deer
management simultaneously. Plaintiffs are correct that multiple actions are to be considered
20
together in certain circumstances. See 40 C.F.R. §§ 1508.25(a)(1)-(a)(3). But the fundamental
flaw with Plaintiffs’ argument is that it goes against longstanding precedent that “[a]n agency
enjoys broad discretion in determining how best to handle related, yet discrete, issues in terms of
procedures and priorities.” Mobil Oil Exploration & Producing Se. Inc. v. United Distribution
Cos., 498 U.S. 211, 230 (1991) (citations omitted). It is “absolutely clear” that agencies are free
to engage in multiple rulemakings at their discretion “[a]bsent constitutional constraints or
extremely compelling circumstances.” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978) (citations omitted). “[A]n agency need not solve every
problem before it in the same proceeding. This applies even where the initial solution to one
problem has adverse consequences for another area that the agency was addressing.” Mobil Oil,
498 U.S. at 231 (citing Vt. Yankee, 435 U.S. at 543-44). As stated by the Ninth Circuit and
perfectly on point here, a court “cannot force an agency to aggregate diverse actions to the point
where problems must be tackled from every angle at once. To do so risks further paralysis of
agency decisionmaking.” Nw. Res. Info. Ctr., Inc. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060,
1069 (9th Cir. 1995) (citation omitted). Thus it is perfectly acceptable for the agency to
conclude that “[t]he plan/EIS for deer management is an example of an implementation plan that
focuses on deer management and not invasive plant management. These two subjects, although
in some ways related, are addressed in two different planning efforts.” (AR 16871).
The cases cited by Plaintiffs are not to the contrary. For example, Plaintiffs cite to
Kleppe v. Sierra Club, 427 U.S. 390 (1976), multiple times in their summary judgment brief.
(See Dkt. No. 13, at 14 & 42). Both times they quote the opinion for the proposition that the
exotics and deer issues must be handled together, 3 they use the same sentence, and omit the same
3
The Kleppe opinion is cited elsewhere in the brief for other propositions.
21
compound adjective. The sentence, as included by Plaintiffs, is that “[w]hen several proposals
for . . . actions that will have a cumulative or synergistic environmental impact upon a region are
pending concurrently before an agency, their environmental consequences must be considered
together.” (Id. (citing Kleppe, 427 U.S. at 410) (Plaintiffs’ emphasis removed)). First of all, the
opinion refers not to proposals generally, as Plaintiffs represent, but to “proposals for coal-
related actions.” Kleppe, 427 U.S. at 410. This changes the meaning considerably, because the
Court is not talking about just any proposals. But even more important, in Kleppe, where coal-
related actions were at issue, the Supreme Court still rejected the NEPA challenge, finding that
where resolving issues “requires a high level of technical expertise,” it “is properly left to the
informed discretion of the responsible federal agencies.” Kleppe, 427 U.S. at 412. Thus the case
in fact supports Defendants’ position.
Plaintiffs also rely on Fund for Animals v. Clark, 27 F. Supp. 2d 8 (D.D.C. 1998). In fact
this is a case upon which Plaintiffs principally rely. (See Dkt. No. 24, at 4). But this case is of
little help. In Fund for Animals, the court found that federal agencies failed to consider two
related actions where one had a profound impact on the other and the record was clear the
agency did not consider the combined impact. 27 F. Supp. 2d at 14. The court criticized the
agencies for failing to consider animal feeding and management programs together “so that the
involved agencies could determine the combined impact of the programs. The record is clear
that the [Environmental Assessment] submitted . . . does not consider the combined
environmental impact of these . . . actions.” Id. In sum, the issue is not whether inextricably
linked issues can be separated by agencies in an EIS. The issue is whether subjects that have a
more peripheral relationship, such as deer and exotics, can be managed with awareness of both
subjects without halting the ability of the agency to handle either. As articulated by the court in
22
Fund for Animals, an agency may address different issues at different times; what it may not do
is “unreasonably” “segment actions.” 27 F. Supp. 2d at 13. The Park Service here does not
unreasonably segment actions under NEPA when “park staff have implemented an exotics
management program,” (AR 16506), as well as when scientific research indicates adverse
impacts from deer requires action.
Second is the issue of whether the government properly addressed the subject of exotics
in the FEIS. Section II.A of Plaintiffs’ summary judgment motion is titled “The Park Service
Has Violated NEPA By Failing To Address The Invasive Species Problem As Part Of Its
Management Decision.” But in that very section of Plaintiffs’ brief, they acknowledge that one
of the objectives of the FEIS is to “reduce the spread of nonnative plant species through effective
deer management.” (See Dkt. No. 13, at 43 (quoting AR 16456)). Anyone reviewing the FEIS
does not have to read far before the subjects of deer management and exotics are discussed
together: there are five mentions of the two subjects in the first two pages. (See AR 16456-57
(objectives of deer management plan include to: “[p]rotect the natural abundance, distribution,
and diversity of native plant species”; “[m]aintain, restore, and promote a mix of native plant
species and reduce the spread of nonnative plant species through effective deer management”;
“[p]rotect the natural abundance, distribution, and diversity of native animal species within the
park by reducing excessive deer browsing, trampling, and nonnative seed dispersal”; “[p]rotect
habitat of rare plant and animal species from adverse effects of deer, such as excessive deer
browsing, trampling, and nonnative seed dispersal”; “[p]rotect the integrity, variety, and
character of the cultural landscapes by reducing excessive deer browsing, trampling, and
nonnative seed dispersal”). The Table of Contents includes sections on “Exotic Invasive
Species” and “Exotic Invasive Species in Rock Creek Park.” (AR 16471). It is thus difficult to
23
square Plaintiffs’ claim that the agency ignored the issue of exotics in the FEIS, especially when
Plaintiffs themselves acknowledge that the agency explicitly discussed the issue.
The record is replete with examples of Defendants addressing the problem with exotics in
Rock Creek Park, and considering the issue along with the issue of deer management. For
example, the Science Team assembled by the Park Service concluded “that deer reduction must
occur first and then the management of invasive species would need to be evaluated to determine
if they limit the recovery of the native habitat.” (AR 10230). The FEIS states that “[a] continued
large deer population and related browsing [would] result[] in decreased plant diversity [and]
increased exotic plants . . . .” (AR 16462). It also states that “overbrowsing by deer gives
invasive exotic plant species an opportunity to become established, which could potentially
outcompete native plants and contribute to adverse impacts to visitors who value native
vegetation.” (AR 16729). It adds that “[d]eer can promote nonnative species through habitat
alteration (disturbance to vegetation and soils from trampling) and through seed dispersal from
seeds carried on their coats or found in fecal matter.” (AR 16590) (citations omitted). And the
list goes on. One simply cannot reconcile Plaintiffs’ claim that Defendants failed to address deer
management and exotics together with the Administrative Record. Plaintiffs relatedly argue that
the Park Service violated NEPA by failing to consider whether reducing the number of deer at
Rock Creek Park may promote the spread of exotic species. (See Dkt. No. 13, at 45-48). But
Plaintiffs point to nothing in the record to suggest that reducing the number of deer may increase
the spread of exotics. In fact, the Administrative Record suggests the exact opposite.
Plaintiffs call the Park Service’s alleged failure not to address exotics in the context of
the FEIS’s objectives to protect, preserve, and restore native vegetation “[m]ost startling.” (Dkt.
No. 13, at 32). The Plaintiffs contend that “the Park Service failed to consider the impact that
24
killing the deer may have on promoting the expansion of exotic species into the Park. This
omission is particularly glaring in light of the fact that the Park Service emphasized the
beneficial ‘socio-economic’ impacts its decision to kill the deer will have on the private
properties that surround the Park as part of its environmental analysis.” (Dkt. No. 13, at 32)
(citations omitted) (emphasis in original). But the Administrative Record reveals that in fact the
Park Service did consider this issue. For example, the Science Team assembled by the Park
Service stated: “Deer typically have not shown any preference for the invasive species; they
seem to prefer the native plants in Rock Creek Park. Therefore, the Science Team deduced that
decreased deer density would not directly result in increased invasive species.” (AR10230)
(emphasis added). In addition, research published in 2011 appearing in the Administrative
Record states: “Protection of vegetation from deer herbivory appears to have had virtually no
impact on non-native species richness.” (AR 15236). Thus Plaintiffs’ argument that the Park
Service did not consider the impact on exotic species of lowering the deer population does not
withstand scrutiny. While the subject may not be addressed at the length Plaintiffs desire, “some
degree of speculation and uncertainty is inherent in agency decisionmaking,” and an “agency
need not stop in its tracks when it lacks sufficient information.” Oceana, Inc. v. Evans, 384 F.
Supp. 2d 203, 219 (D.D.C. 2005) (citations omitted).
Based on all of this, this Court is convinced that the Park Service acted within its
discretion to address deer management through the FEIS without simultaneously implementing a
final, detailed plan for the control of exotics. Here the Science Team assembled by the Park
Service stated: “Deer typically have not shown any preference for the invasive species; they
seem to prefer the native plants in Rock Creek Park. Therefore, the Science Team deduced that
decreased deer density would not directly result in increased invasive species.” (AR10230)
25
(emphasis added). “The NEPA process involves an almost endless series of judgment calls. . . .
It is of course always possible to explore a subject more deeply and to discuss it more
thoroughly. The line-drawing decisions necessitated by this fact of life are vested in the
agencies, not the courts.” Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir.
1987). There is no reason for this Court to interfere with the government’s decision to manage
the deer population in Rock Creek Park in accordance with the FEIS.
2. Impact on Park/Visitors
NEPA requires an agency to consider “the relationship of people with their
environment.” 40 C.F.R. § 1508.14. Plaintiffs claim that “the agency summarily dismissed all
adverse impacts to visitors as ‘negligible’ simply because the killing would ‘primarily occur
during fall and winter and at night’ and not all of the deer would be killed.” (Dkt. No. 13, at 50
(quoting AR 16734) (emphasis in original)). But the Park Service did consider impacts on
visitors to the Park.
There are several ways in which the Park Service considered visitor impacts. For
example, while acknowledging that use of methods such as sharpshooting would have some
negative impacts on visitors, the Park Service considered that those would be mitigated—albeit
not eliminated—by trying to do all culling at night when the Park is closed, and during the winter
when there are fewer visitors. (AR 16734). Plaintiffs’ representation that the agency dismissed
all impacts as negligible is not accurate. For example, the agency acknowledged that people
close “to the source of the firearm would likely experience moderate adverse impacts if such
sounds made enjoyment of other activities in the area difficult,” and that “[o]verall impacts to
soundscapes under [Alternatives C & D] would be short and long term, adverse, and minor to
moderate, particularly due to the use of firearms.” (AR 16724-25). Ultimately this “would be
26
expected to decrease in the long term, as deer populations in all affected areas decrease and the
need for direct reduction decreases as well.” (AR 16726). Although there would be fewer deer,
certainly “opportunities to view deer would still exist.” (AR 16734). And of course there is the
consideration that the overall impact of Alternative D is designed to increase plant and animal
diversity, thus allowing visitors to the Park to “enjoy enhanced scenery.” (Id.).
Plaintiffs claim that because the Park Service failed to consider the impact using lethal
force will have on the “traditional park character and visitor experience,” (AR 18615), the
agency violated NEPA. Plaintiffs argue, for example, that “merely knowing that wildlife is
being killed each night will itself generate extremely negative impacts.” (Dkt. No. 13, at 49).
But “merely knowing” about what is happening to wildlife is a psychological injury not
cognizable under NEPA. See Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir.
1992); see also Sierra Club v. Marsh, 872 F.2d 497, 504 (1st Cir. 1989) (“[T]he harm at stake in
a NEPA violation is a harm to the environment, not merely to . . . psychological well-being.”)
(emphasis removed). There is no logical end to the argument advanced here by Plaintiffs;
presumably there are members of the public for whom merely knowing that wildlife is being
subjected to reproductive controls may generate negative impacts. This is not the type of injury
NEPA is designed to protect. Moreover, Defendants considered and weighed the issue as part of
their overall decisionmaking. 4 Thus the cases cited by Plaintiffs are of little help. For example,
4
Plaintiffs argue that the failure to conduct a visitor use study specific to this plan violates
NEPA because the government therefore did not consider how the deer management plan will
impact Park use. But the government does have an understanding of what people particularly
value in Rock Creek Park from a previous study conducted in 1999 that “assessed why visitors
came to the park, what was important to them at the park, what were their perceptions of the
park, and how they rated park amenities.” (AR 16629). In addition, “[m]ore specific visitor
studies have been done in other parks to look at visitors’ and residents’ perceptions of deer,” (AR
16903), and the Park Service rationally “believes that it is not unreasonable to make assumptions
27
Plaintiffs cite Bluewater Network v. Salazar, 721 F. Supp. 2d 7 (D.D.C. 2010), but even
Plaintiffs themselves note that in Bluewater Network there was “no discussion” in the NEPA
document about the impact of changing course and allowing watercraft back into two national
parks. (See Dkt. No. 24, at 49). Such is not the case here, as previously discussed.
3. Reproductive Control Methods
The Park Service developed a set of five criteria to determine whether a reproductive
agent would be appropriate for use in Rock Creek Park to manage the deer population. The
agent must: be federally approved for free-ranging populations; be effective for three to five
years; be able to be administered remotely; allow the meat to remain safe for human
consumption; and have demonstrated its efficacy in a free-ranging population with limited
behavioral impacts. (AR 17734-35). Plaintiffs suggest that reproductive controls would be a
preferable method for controlling deer than the Park Service’s Alternative D. (See Dkt. No. 13,
at 40). Their argument is based primarily on the claim that such controls have been used to
control deer populations in other areas. (Id.). They also state in a footnote that “the mere fact
that some reproductive control agents lack federal approval is not a legitimate basis for rejecting
this approach.” (Id. at 40 n.10).
While reproductive controls may hold promise for the future, the Administrative Record
supports the Park Service’s conclusion that such controls are inadequate to meet the Park’s needs
now. Research analyses in the Administrative Record indicate that immunocontraceptive agents
can be effective at maintaining wild animal populations, but not, as is relevant here, reducing
such populations, particularly deer. (See, e.g., AR 14821-36; AR 13166-93; AR 4603-38). One
study in the record found that “for long-lived species like deer, it may be prudent to reduce the
about visitor experiences when similar studies have been completed in national park areas,” (AR
16905).
28
population to a desired number by some other management technique before applying fertility
control to stabilize herd growth.” (AR 14828). Another called their use on deer herds such as
those found in Rock Creek Park “impractical and ineffective. Because fertility control has no
short-term effect on population size, pre or post treatment culling will be an essential part of the
timely resolution of deer problems with fertility agents.” (AR 13185). Yet another found that
for “white-tailed deer, which have a low reproductive rate and life span from 10 to 12 years,
fertility control alone will probably not be effective in reducing the population. . . . From a
practical standpoint, it would be better to reduce the deer herd to a desired number by some other
management technique, then apply fertility control to stabilize herd growth.” (AR 4613 (citation
omitted)). The Administrative Record here amply supports Defendants’ decision not to rely
solely on reproductive controls to address the deer management issue.
Plaintiffs point to research studies that purportedly support their argument in favor of
preferring reproductive controls over Alternative D, but upon closer examination this support
fades. For example, Plaintiffs state that one type of reproductive control “has been successfully
used at Assateague Island National Seashore to reduce the wild horse population.” (Dkt. No. 13,
at 24 n.5). But Plaintiffs fail to note the data at issue: the study reveals it took fifteen years to
reduce the population by 16%. (See AR 16796). This math, as applied to Rock Creek Park, fails
to address the problem as scientists have recommended both in terms of the speed and amount of
necessary population reduction. Two other studies cited by Plaintiffs, which looked at a small
segment of fenced deer populations, “indicate that the amount of reduction in deer density
needed to achieve the desired forest regeneration would take a long time to occur, and forest
regeneration would not be successful within the life of this plan.” (AR 16837). Another study
cited by Plaintiffs involved fenced deer at a zoo who were surgically sterilized. (AR 16538). All
29
of this research is either inapposite, or affirms that relying solely on reproductive controls is not
currently feasible.
CONCLUSION
Nature is dynamic and ever-changing. When Congress passed the Rock Creek Park
Enabling Act in 1890, they could hardly have imagined a deer population causing problems in
the Park, given the likely absence of the animal in the Park. Yet the Park Service is now faced
with a difficult decision. The deer population in the Park is above what scientists have
concluded is healthy for the long-term management of the Park. There appears to be little
dispute that a decision must be made about what to do, and people understandably have strong
views about the right course. But the role of this Court is not to decide that course. That is a role
that Congress has entrusted to the Park Service. As the Supreme Court has explained, “[t]he
question presented for review in this case is a classic example of a factual dispute the resolution
of which implicates substantial agency expertise,” Marsh, 490 U.S. at 376, and the review of
complex scientific information is when a court should be “most deferential,” Balt. Gas & Elec.
Co., 462 U.S. at 103. Plaintiffs do not offer argument to justify withholding deference to the
Park Service’s reasoned decisionmaking in this case. Accordingly, Defendants’ motion for
summary judgment (Dkt. No. 18) is granted, and Plaintiffs’ motion for summary judgment (Dkt.
No. 13) is denied. An Order accompanies this Memorandum.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2013.03.14 14:16:14 -04'00'
Date: March 14, 2013
ROBERT L. WILKINS
United States District Judge
30