United States Court of Appeals, District of Columbia Circuit
Argued September 11, 2014
Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-01738).
Katherine Anne Meyer argued the cause for appellants. With her on the briefs was William S. Eubanks II.
Lane N. McFadden, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Robert G. Dreher, Acting Assistant Attorney General.
Before: GARLAND, Chief Judge, PILLARD, Circuit Judge, and SENTELLE, Senior Circuit Judge.
Sentelle, Senior Circuit Judge.
The National Park Service of the Department of Interior adopted a plan for the management of deer in Rock Creek National Park in Washington, D.C. The plan
involved the killing of white-tailed deer. The consideration and adoption of the plan included the issuance of an environmental impact statement. Appellants, five individuals and an organization called " In Defense of Animals," brought the present action for declaratory and injunctive relief, alleging that the Park Service's plan violated statutes governing the management of the Park and was not adopted in compliance with the Administrative Procedure Act. The complaint further alleged that the environmental impact statement did not meet the requirements of the National Environmental Policy Act. The district court granted summary judgment in favor of the defendants. Plaintiffs brought the present appeal. We affirm.
Rock Creek Park in Washington, D.C., was created by Act of Congress in 1890 as a " public park or pleasure ground for the benefit and enjoyment of the people of the United States." Rock Creek Park Enabling Act (" Enabling Act" ), Ch. 1001, § 1, 26 Stat. 492. Originally, the Park was under the joint control of the Commissioners of the District of Columbia and the Chief Engineers of the United States Army. Id. § 7. In 1916, Congress established the National Park Service under the National Park Service Organic Act, 16 U.S.C. § 1, and the Rock Creek Park came under the authority of the Park Service. Both Acts authorize the management of natural phenomena such as wildlife within the park. The present controversy arises over the management of the deer population.
According to the Park Service, few if any white-tailed deer inhabited Rock Creek Park at the turn of the twentieth century. See National Park Service, Final White-Tailed Deer Management Plan/EIS (" Final EIS" ) at ii (2011). Over the years, however, conditions changed. Areas surrounding Rock Creek Park became urbanized or suburbanized. Predators, such as cougars and wolves, no longer populated the mid-Atlantic region. Deer became increasingly common in Rock Creek Park. Occasional deer sightings emerged in the 1960s and continued sporadically throughout the 1970s. By the early 1990s, deer sightings were so common that the Park Service no longer recorded individual sightings. In 1989, the Park Service recorded the first incident of a deer struck and killed by a vehicle. See id. at 14. From 2003 to 2007, the Park Service recorded an average of 42 deer-vehicle collisions per year. See id. at 148.
Deer are herbivores and generally browse vegetation from ground level to approximately six feet in height. A large deer population can result in a visible " browse line," a line at approximately six feet above ground level, " below which most or all vegetation has been uniformly browsed." Id. at 535. Deer browsing can adversely impact native vegetation by over-consuming existing shrubs and herbaceous species. Excessive browsing of tree seedlings interferes with the forest's ability to naturally regenerate itself. See id. at 1.
By the mid-1990's, the Park Service began formally monitoring deer population levels. Based on intensive scientific evaluation, the Service estimated that, by 2009, Rock Creek Park would have a deer density of 67 per square mile, or approximately 315 total deer in the Park. See id. at 56. Given the increase in deer population and the increase in attendant problems, the Park Service convened a science team, comprised of experts from various state and federal agencies, to provide technical background information and research to support the preparation of a deer management plan. Science Team Final Report: Rock Creek Park Deer Management Plan/Environmental Impact Statement
(" Science Team Final Report" ) (2007). In September 2006, the Park Service published a notice in the Federal Register that it intended to prepare a white-tailed deer management plan and an accompanying environmental impact statement for Rock Creek Park, and invited comments from the public. 71 Fed. Reg. 55012, 55012-13 (Sept. 20, 2006). During the so-called " public scoping," the Park Service held two public meetings and received 140 written comments. See National Park Service, Record of Decision: Rock Creek Park White-Tailed Deer Management Plan and Final Environmental Impact Statement (" Record of Decision" ) at 11 (2012). In July 2007, the science team published its summary and recommendations, suggesting that an initial goal of 15 to 20 deer per square mile in 2009 " would be appropriate for Rock Creek Park." Science Team Final Report at 5.
In 2009, the Park Service published its Draft White-Tailed Deer Management Plan/Environmental Impact Statement (" Draft EIS" ). The Draft EIS stated a need to address the " potential of deer becoming the dominant force in the park's ecosystem, and adversely impacting native vegetation and other wildlife," a " decline in tree seedlings caused by excessive deer browsing and the ability of the forest to regenerate," and " [e]xcessive deer browsing impacts on the existing shrubs and herbaceous species" as well as on the " character of the [park's] cultural landscapes." Draft EIS at 1-2 (2009). The Plan's objectives included protecting " the natural abundance, distribution, and diversity of native plant species . . . by reducing excessive deer browsing, trampling, and nonnative seed dispersal," and protecting the habitat of birds and " rare plant and animal species from adverse effects of deer." Id. at 2. The Draft EIS identified four alternatives, including a " no-action" alternative (Alternative A). Under Alternative B, the Park Service would utilize non-lethal actions for deer control, including large-scale exclosures and reproductive controls. Alternative C would include lethal actions, reducing the size of the deer herd through sharpshooting or capture and euthanasia. Alternative D would include both lethal and non-lethal actions, using lethal actions to quickly reduce the deer herd, with the possible use of reproductive controls to maintain herd size. Id. at 41-42. The Park Service identified Alternative D as its preferred alternative, and as the environmentally preferred alternative. Id. at 92.
After releasing the Draft EIS, the National Park Service announced an extended public comment period and held a public meeting on its Draft EIS. See Record of Decision at 11. Over 125 people attended the meeting, and the Park Service received 414 pieces of correspondence during the comment period. See id. at 11-12. The Park Service ultimately chose Alternative D in its Final EIS, finding that a combination of lethal and non-lethal controls would promote enhanced forest regeneration, improve the quality of Rock Creek's scenery and ecological diversity, and provide flexibility for the potential use of non-lethal means to control deer herd size. See id. at 8-10. The Park Service rejected the no-action alternative, Alternative A, as it would allow deer over-browsing and trampling to continue to adversely impact native vegetation. Alternative B, using only non-lethal reproductive controls, would not reduce the deer population quickly enough, given the long life cycle of white-tailed deer. Alternative C, using only lethal controls, would accomplish many of the Park Service's objectives, but would not allow future use of non-lethal methods, should the Park Service later find reproductive controls feasible and effective in maintaining acceptable deer densities. See id. at 9-10.
The Park Service published its Final Deer Management Plan and EIS for public review on January 13, 2012, and issued its Final Record of Decision on May 1, 2012. Plaintiff-appellants filed their complaint in federal district court on October 25, 2012. The parties jointly agreed that the Park Service would stay implementation of the deer management plan until March 15, 2013, to give the district court time to rule on the merits. On March 14, 2013, the district court granted summary judgment for the defendants. Grunewald v. Jarvis, 930 F.Supp.2d 73 (D.D.C. 2013). Plaintiffs appeal, assigning several grounds of alleged error. Upon review, we conclude that the National Park Service acted reasonably and within the scope of its authority, and therefore affirm.
We review the district court's grant of summary judgment to the National Park Service de novo, applying the Administrative Procedure Act standard that " requires us to set aside agency action that is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Jicarilla Apache Nation v. United States DOI, 613 F.3d 1112, 1118, 392 U.S.App.D.C. 145 (D.C. Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)). Applying that standard, we consider each of appellants' allegations of error.
A. Whether the Deer Management Plan Violates the Rock Creek Park Enabling Act
Appellants argue that " the district court erred in deferring to the agency's post hoc construction of the Rock Creek Park enabling statute." Grunewald Br. 28. This is not precisely the question before us, as we review the agency's decision de novo. The question, then, is not whether the district court erred in its consideration of the agency's construction of the statute, but whether upon review of the ...