The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On December 1, 2003, the plaintiffs *fn1 filed a motion for a temporary restraining order to prohibit a six-day black bear hunt that was authorized by the State of New Jersey to take place, inter alia, on federal land located in New Jersey commencing on December 8, 2003. Because part of the land on which the hunt is designated to be conducted is federal land, plaintiffs argue that the federal defendants, the Director of the National Park Service ("NPS") and the Secretary of the Department of the Interior ("DOI"),*fn2 had a duty to conduct an environmental analysis regarding the potential impact of the proposed hunt pursuant to several statutes, which they have failed to do. The Court convened an emergency hearing on December 5, 2003, at which time, due to the limited amount of time the Court had to review the pleadings and consider the several issues raised by the parties, it granted a temporary restraining order until it had the opportunity to review the merits of the plaintiffs' claims.*fn3 Having now had that opportunity, the Court concludes that plaintiffs are not entitled to injunctive relief.
Black bears have inhabited New Jersey since very early in the state's history and have"[l]ong [been] considered a threat and a nuisance to development...." Compl. ¶ 69.*fn4 In 1954, New Jersey reclassified the black bear as a"game mammal," which exposed the animal to sport hunting. Id. ¶ 70. By 1971, the black bear population had been reduced to less than 25 animals, prompting the State of New Jersey to ban the hunting of the species. Id. However, after a 32 year proscription against hunting the black bear, in 2003 the State of New Jersey decided to reinitiate black bear sport hunting. Id. ¶ 71. The State decided to conduct part of this year's hunt in the New Jersey unit of the Delaware Water Gap National Recreation Area (the"Recreation Area"), an area that was designated by Congress as a unit of the National Park System in 1965. Id. ¶ 49 (citing 16 U.S.C. § 460o).*fn5 According to plaintiffs, New Jersey's decision to conduct the bear hunt is premised on the State's faulty assessment that the black bear population has increased to more than 3,200 bears since 1997, which would constitute a 500 percent increase in the past six years. Id.
Plaintiff, the Fund for Animals, alleges that it was not until November 14, 2003, that it learned that the planned 2003 New Jersey bear hunt would not be limited to state and private lands in New Jersey, but would include the federal lands of the Recreation Center. Id. ¶ 82.*fn6 Plaintiffs state that on November 24, 2003, John Donahue, the Superintendent of the Delaware Water Gap National Recreation Area, presided over a meeting of the congressionally created Advisory Commission for the Recreation Area, during which a debate concerning the hunt was conducted. Id. ¶ 87. During the November 24 meeting, Mr. Donahue allegedly stated that a decision regarding whether or not to postpone the hunt would be made during the week of December 1, 2003, one week prior to the scheduled commencement of the bear hunt. Id. ¶ 88. Although plaintiffs state that Mr. Donahue"expressed a willingness to work with plaintiffs towards a resolution of their concerns," they state that he"noted that it was unlikely that the NPS would postpone this year's hunt." Id. ¶ 89.
In a three – count complaint,*fn7 plaintiffs seek a ruling from the Court that the defendants have violated the Administrative Procedure Act ("APA") by acting in a manner that is arbitrary, capricious and not in accordance with law. 5 U.S.C. § 706. Specifically, plaintiffs allege (1) that the defendants have violated the Delaware Gap Enabling Act ("DGEA"), 16 U.S.C. § 460o–5, by authorizing bear hunting within the Recreation Area without first promulgating hunting regulations as required by that Act; (2) that defendants have violated the National Park Service Organic Act, 16 U.S.C. § 1 et seq., and the NPS's internal, binding management policies by authorizing the bear hunt without ensuring that such hunting will not impair park resources or result in the"wanton destruction" of park wildlife; and (3) that defendants have violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331(2)(C), by authorizing the bear hunt without preparing required NEPA documents. Plaintiffs also seek an order directing the defendants to comply with their statutory duties and to preliminarily and permanently enjoin the defendants from authorizing black bear hunting until such time as the agency and the Secretary have complied will all applicable federal laws and regulations.
In determining whether plaintiffs are entitled to further injunctive relief, the Court must employ this Circuit's familiar four-prong test, which requires the Court to evaluate (1) whether plaintiffs have demonstrated that there is a substantial likelihood that they will prevail on the merits of one of their claims; (2) whether plaintiffs have shown that they will sustain irreparable harm if injunctive relief is not awarded; (3) whether the issuance of injunctive relief will not"substantially harm" the other parties; and (4) whether awarding the relief is in the public interest. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (citing Virginia Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)).
1. Likelihood of Success on the Merits
Plaintiffs argue that they can demonstrate a likelihood of success on the merits because they can show that the defendants have acted arbitrarily and capriciously and not in accordance with law, in violation of the APA, 5 U.S.C. § 706, as to each of their claims.*fn8 Memorandum in Support of Plaintiffs' Motion for a Temporary Restraining Order ("Pls.' Mem.") at 21.
A. Defendants' Alleged Violation of the Delaware Gap Enabling Act
First, regarding the DGEA, plaintiffs argue that the defendants have failed to promulgate hunting regulations as required by the DGEA. The applicable provision of the DGEA provides, in relevant part:
The Secretary of the Interior shall permit hunting and fishing on lands and waters under his jurisdiction... in accordance with the applicable laws and regulations of the States.... The Secretary of the Interior may designate zones where, and establish periods when, no hunting shall be permitted for reasons of public safety, wildlife management, administration, or public use and enjoyment not compatible with hunting, and may, in his plan for the area, provide areas for intensive fish and wildlife management, including public hunting and fishing, and shall issue appropriate regulations after consultation with appropriate officials of the States concerned.
16 U.S.C. § 460o-5 (emphasis added). Plaintiffs argue that this provision mandates that the Secretary promulgate regulations before hunting can commence. They rely on Oregon Natural Resources Council v. Lyng, 882 F.2d 1417 (9th Cir. 1989), for the proposition that the Secretary of the DOI is required, pursuant to section 460o–5, to promulgate regulations concerning black bear hunting. In Lyng, plaintiffs argued that the Secretary of the Department of Agriculture had violated the Hells Canyon National Recreation Area Act ("HCNRA") by approving a timber sale without first"promulgat[ing] regulations governing when, where, and how certain activities, including timber harvesting, may occur in the HCNRA." 882 F.2d at 1425. The HCNRA's relevant statutory language provided that"'[t]he Secretary shall promulgate... such rules and regulations as he deems necessary to accomplish the purposes... of this title.'" Id. at 1426 (quoting 16 U.S.C. § 460gg–7) (emphasis added). In reversing the district court's conclusion that this language did not require the Secretary to promulgate rules and regulations, the Lyng court held that, in the absence of regulations addressing the specific activity at issue,"[t]he language and legislative history of section 10 clearly reveal an intent to create a mandatory duty to promulgate regulations in the specified categories." Id. Rejecting the district court's conclusion that the language of the statute gave the Secretary discretion regarding whether to issue regulations, the court stated that"[i]n both the first and second sentences of section 10 the predicate nominative of the word'shall' is'rules and regulations':'shall' describes the Secretary's relationship to the regulations." Id. at 1427 (citation omitted).
In opposition, defendants argue that they had no duty to promulgate regulations here because in accordance with a plain reading of the statute, regulations must only be promulgated when there are limitations placed on hunting. Defendants' Memorandum in Opposition to Plaintiffs' Motion for a Temporary Restraining Order ("Defs. Opp'n") at 10. In other words, defendants posit that it is only"[w]hen the Secretary exercises her discretionary authority to [impose] such limitations... [that] the Enabling Act directs that the Secretary'shall issue appropriate regulations after consultation with appropriate officials of the States concerned.'" Id. at 11 (quoting 16 U.S.C. § 460o–5). Because the NPS"has not exercised its discretion to restrict hunting or to allow intensive management... [,]" defendants contend that regulations did not have to be promulgated. Id. Defendants submit that their interpretation of the DGEA is bolstered by the NPS's general hunting regulations, which provide that hunting"shall be allowed in park areas where such activity is specifically mandated by Federal statutory law[,]" and further provide that"'[h]unting may be allowed in park areas where such activity is specifically authorized as discretionary under Federal statutory law.... Such hunting shall be allowed pursuant to special regulations.'" Id. at 12 (quoting 36 C.F.R. § 2.2). Moreover, defendants opine that because the NPS is the agency ...