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Grunewald v. Jarvis

United States District Court, District of Columbia

March 14, 2013

CAROL GRUNEWALD, et al., Plaintiffs,
v.
JONATHAN B. JARVIS, DIRECTOR, NATIONAL PARK SERVICE, et al., Defendants

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[Copyrighted Material Omitted]

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For CAROL GRUNEWALD, JEREMY RIFKIN, ANNE BARTON, MARY ROWSE, ZHONG-YING CHEN, IN DEFENSE OF ANIMALS, Plaintiffs: Katherine A. Meyer, William Stewart Eubanks, II, Jessica Almy, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC.

For JONATHAN B. JARVIS, KENNETH LEE SALAZAR, Defendants: Caitlin Brynna Imaki, LEAD ATTORNEY, U.S. DERPARTMENT OF JUSTICE, Environmental & Nat. Res. Division; Natural Res. Section, Washington, DC.

OPINION

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ROBERT L. WILKINS, United States District Judge.

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.

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

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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 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, 96 S.Ct. 2285, 49 L.Ed.2d 34 (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.

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§ 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 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, 109 S.Ct. 1835, 104 L.Ed.2d 351 (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, 103 S.Ct. 2246, 76 L.Ed.2d 437 (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 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

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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, 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 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 ...


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