Friends of Animals v. United States National Parks , 434 F. App'x 72 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-4329
_____________
FRIENDS OF ANIMALS, A Connecticut Non-Profit Organization;
COMPASSION FOR ANIMALS, RESPECT FOR THE ENVIRONMENT,
A Pennsylvania Non-Profit Organization,
Appellants
v.
UNITED STATES NATIONAL PARKS MIKE CALDWELL, In Official capacity
as Superintendent of Valley Forge National Historical Park;
UNITED STATES NATIONAL PARKS SERVICE, An Agency of the U.S.;
KEN SALAZAR, In His Official Capacity as the Secretary of the Interior;
JON JARVIS, In his Official Capacity as Director of the National Park Service;
DENNIS REIDENBACH, In his Official Capacity as Regional Director for the
Northeast Region of the National Park Service
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 09-cv-05349)
District Judge: Honorable Mitchell S. Goldberg
____________
Submitted Under Third Circuit LAR 34.1(a)
June 20, 2011
____________
Before: BARRY, AMBRO and COWEN, Circuit Judges
(Filed: June 27, 2011 )
____________
OPINION
____________
BARRY, Circuit Judge
Appellants, relying on the National Environmental Policy Act (“NEPA”) and the
Administrative Procedures Act (“APA”), challenge the procedures used by the National
Park Service (“NPS”) to conclude that a massive deer cull involving sharpshooters was
the best option for preserving vegetation in Valley Forge National Historical Park
(“Valley Forge Park”). The District Court found no error, and we will affirm.
I.
Valley Forge Park is located in rapidly growing suburbs eighteen miles northwest
of center city Philadelphia. The park is overrun with white-tailed deer. Between 1983
and 2009, the deer density in the park increased from 31 to 35 deer per square mile to 241
deer per square mile. The deer voraciously eat vegetation within the park, and estimates
of the appropriate deer density for maintaining natural forest regeneration range from 10
to 40 deer per square mile.
Following a three-year study and the proper publishing of notices, distribution of a
draft environmental impact statement (“EIS”), and public meetings and public comment
periods on the issue, the NPS published a final EIS on August 28, 2009, as required by
NEPA, 42 U.S.C. § 4321 et seq. The EIS identified as its objectives, in relevant part, the
protection and restoration of native plant communities and the cultural landscape through
the reduction of deer browsing, and the maintenance of the white-tailed deer population
within the park in a manner that allowed for restoration of native plants.
2
The NPS focused on four alternatives for accomplishing these goals. Alternative
A was dubbed “No-action,” and called for a continuance of the then-in-place deer
management and monitoring efforts. Alternative B, “Combined Nonlethal Actions,”
included a proposal for rotational fencing of selected forested areas, in conjunction with
the introduction of a chemical reproductive control agent, when an effective chemical
agent became available on the market. Alternative C, “Combined Lethal Actions,”
included direct reduction of the deer population through the use of sharpshooters.
Alternative D, “Combined Lethal and Nonlethal Actions,” involved the use of
sharpshooters to immediately reduce the deer population, plus the use of chemical
reproductive controls to maintain the population size once an acceptable agent became
available. The NPS chose Alternative D. The agency estimated that it would take four
years to achieve its deer density goal.
The EIS briefly summarized other options that the NPS considered and then
rejected. Under the heading “Reintroduction of Predators,” the EIS first discussed the
unsuitability of introducing wolves or cougars. It then noted that
[m]oreover, the park is surrounded by developed areas and the proximity to
humans is not appropriate for the reintroduction of large predators. Coyotes
(Canis latrans) are present in the park and bobcats (Lynx rufus) potentially
could be supported by habitats within the park. However, these predators
have been shown not to exert effective control on white-tailed deer
populations (Coffey and Johnston 1997). Based on these reasons, the
reintroduction of predators was dismissed as a management option.
Id. at 214.
3
Appellants (the Connecticut-based non-profit Friends of Animals, and the
Pennsylvania-based non-profit Compassion for Animals, Respect for the Environment
(hereinafter, “FOA”)) filed a complaint on November 12, 2009, and the NPS agreed to
stay the deer cull for the 2009-2010 winter season. In April 2010, FOA moved to
supplement the administrative record with three studies related to coyotes and their
feeding and human-interaction habits, and moved for summary judgment. The NPS
cross-moved for summary judgment. On October 5, 2010, the District Court denied
FOA‟s motion to supplement the record. On October 26, 2010, after the NPS announced
its plan to commence the deer cull in winter 2010, FOA moved for a preliminary
injunction. The next day, the District Court denied FOA‟s motion for summary judgment
and granted the NPS‟s motion, and denied FOA‟s motion for a preliminary injunction as
moot. This appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291. When reviewing an administrative
agency‟s final decision under § 706 of the APA, “we review the district court‟s summary
judgment decision de novo, while applying the appropriate standard of review to the
agency‟s decision.” Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 693 (3d
Cir. 1999) (citation and internal quotation marks omitted). Under NEPA, “an agency
decision „to go forward with a major federal action after the agency has prepared and
considered an Environmental Impact Statement requires the court to determine whether
4
all necessary procedures were followed, to consider de novo all relevant questions of law,
and to examine the facts to determine whether the decision was arbitrary, capricious, and
an abuse of discretion.‟” Id. at 705 (quoting Concord Twp. v. United States, 625 F.2d
1068, 1073 (3d Cir. 1980)). NEPA “has a specialized standard of review for
arbitrariness: In deciding whether the agency acted arbitrarily, we will not substitute our
own judgment for that of the agency, but we will insist that the agency has, in fact,
adequately studied the issue and taken a hard look at the environmental consequences of
its decision.” Meister v. U.S. Dep’t of Agric., 623 F.3d 363, 377 (6th Cir. 2010) (citation
and internal quotation marks omitted). We presume that the agency action is valid, and
the burden of proof “rests with the appellants who challenge such action.” Citizens’
Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (citation
and internal quotation marks omitted).
NEPA “serves procedural rather than substantive goals. It does not require
agencies to achieve particular substantive environmental results, but requires them to
collect and disseminate information about the environmental consequences of proposed
actions.” Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 338 (6th Cir.
2006) (citations and internal quotation marks omitted). NEPA “requires the [agency] to
consider only „reasonable‟ alternatives in the EIS.” Concerned Citizens Alliance, 176
F.3d at 705. “[W]here the agency has examined a breadth of alternatives but has
excluded from consideration alternatives that would not meet the goals of the project, the
5
agency has satisfied NEPA.” Id. at 706. We review an agency‟s “reasonableness”
determination “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).
FOA argues that (1) the NPS failed to adequately consider the reasonable
alternative of increasing the local coyote population; (2) the EIS contained false
alternatives that presented the NPS with only one viable option; and (3) the District Court
gave undue deference to the NPS without properly reviewing the administrative record.
Additionally, FOA argues that adequate judicial oversight was impossible without
supplementation of the record.
A.
i.
FOA argues that the NPS did not follow NEPA requirements when it failed to
consider increasing the coyote population as a reasonable alternative. This argument
raises the issue of how an agency determines when an option is “reasonable,” an issue we
addressed in Concerned Citizens Alliance, 176 F.3d at 705-06.
There, the question was whether the U.S. Department of Transportation violated
NEPA by “failing to evaluate in detail an alternative” to building a bridge that directed
traffic through an historic district. Id. at 690. The defendants considered but did not
perform a detailed study of the plaintiffs‟ desired alternative—building a second bridge in
an alternate location—because defendants “deemed that alternative unreasonable.” Id. at
6
692. In determining that the plaintiffs‟ alternative was not feasible, the defendants had
conducted a study of local drivers, concluded that the alternative was financially
unreasonable, determined that the alternative created new environmental problems, and
decided that building a second bridge was unnecessary to fulfill the goals of the project.
Id. at 703-04. We noted that “[t]here is necessarily a limit to the thoroughness with which
an agency can analyze every option,” and we concluded that “the defendants adequately
considered the [second bridge] alternative and its attendant flaws before rejecting it as
infeasible.” Id. at 706. We also noted that “plaintiffs have not offered a „specific,
detailed counterproposal that had a chance of success.‟” Id. (quoting City of Angoon v.
Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986)).
In rejecting the option of coyote predation, the NPS seems to have relied
principally—if not wholly—on a 1997 study stating that coyotes could not consistently
control white-tailed deer populations. App. at 362. Based on that study, “the
reintroduction of predators was dismissed as a management option.” Id. at 214. We must
evaluate the NPS‟s choice of alternatives in light of the stated objectives of the action.
“[A]n alternative is properly excluded from consideration in an environmental impact
statement only if it would be reasonable for the agency to conclude that the alternative
does not bring about the ends of the federal action.” City of Alexandria, 198 F.3d at 867.
The NPS‟s primary objective was to protect the native plants and landscape of
Valley Forge Park, and it determined that a deer density of 241 deer per square mile had
7
“direct and indirect negative impacts on plant and animal communities.” App. at 184.
Accordingly, any reasonable alternative would have to result in the reduction of the deer
population or in the prevention of such a high density of deer from accessing the
vegetation and landscape. The 1997 Coffey and Johnston study cited by the NPS in the
EIS found that coyotes could not even “consistently control[]” a white-tailed deer
population, not to mention succeed in reducing the deer population to target levels.1 The
NPS clearly researched, and rejected, the idea of reducing the deer population through the
use of predators. It may have relied on only one study. But with no evidence suggesting
that an enhanced coyote population could reduce the white-tailed deer population in
Valley Forge Park, and with evidence stating exactly the contrary, the NPS did not err in
concluding that coyote predation was not a reasonable alternative and did not require
further study. Concerned Citizens Alliance, 176 F.3d at 706.2
Further, although not dispositive, we noted in Concerned Citizens Alliance that the
plaintiffs did not offer a detailed counterproposal to the agency‟s preferred option “that
had a chance of success.” Id. That is also the case here. FOA sought to add to the record
certain studies relating to coyote predation and coyote-human interactions. The District
1
The record contains portions of two other studies, not cited in the EIS, supporting
the conclusions of the Coffey and Johnston study, although it is unclear whether the NPS
relied on those studies. See id. at 366; id. at 372.
2
FOA argues that the NPS never actually considered the option of enhancing the
coyote population because the EIS subchapter discussing coyotes was titled
“Reintroduction of Predators,” and coyotes already existed in Valley Forge Park. Even
assuming that FOA is correct, our analysis is unchanged because the available evidence
suggested that coyotes cannot reduce the deer population.
8
Court did not consider them, but we have, and it is clear that two of the studies support
the NPS‟s conclusion that coyotes could not reduce the white-tailed deer population in
Valley Forge Park. See App. at 37; id. at 126.
The Federal Regulations governing the NPS‟s actions required the agency to
“[r]igorously explore . . . all reasonable alternatives” and only “briefly discuss the
reasons” for eliminating other options from detailed study. 40 C.F.R. § 1502.14(a). The
NPS adequately considered and appropriately rejected the option of coyote predation
because there was not a shred of evidence that such an option could achieve the NPS‟s
stated goals. The NPS‟s determination on this issue was neither arbitrary nor capricious.
ii.
FOA contends that alternatives A and B were no more than “straw men,” and that
the NPS from the beginning preferred to “shoot the deer,” Appellants‟ Br. at 18, the
options available in alternatives C and D. NEPA requires federal agencies to study in
detail all reasonable alternatives to actions significantly affecting the quality of the human
environment. 42 U.S.C. §§ 4332(2)(C)(iii), (E); 40 C.F.R. §§ 1502.1, 1502.14(a). Other
circuits “have interpreted this requirement to preclude agencies from defining the
objectives of their actions in terms so unreasonably narrow they can be accomplished by
only one alternative.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174-75 (10th Cir.
1999) (citing cases from the Seventh and D.C. circuits). However, NEPA does not
mandate particular results, and courts “only consider whether an agency‟s decisions
9
regarding which alternatives to discuss and how extensively to discuss them were
arbitrary, keeping in mind that such decisions are necessarily bound by a rule of reason
and practicality.” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1277 (10th Cir.
2004) (citations and internal quotation marks omitted). The goal of court review “is to
ensure that the agency gathered information sufficient to permit a reasoned choice of
alternatives as far as environmental aspects are concerned.” Id. (citation and internal
quotation marks omitted).
The record indicates that the NPS engaged in a lengthy and reasoned review
process before focusing on alternatives A, B, C, and D and ultimately choosing
Alternative D. As an initial matter, FOA‟s arguments regarding Alternative A as being
only a false alternative fall flat; federal regulations required the NPS to include
Alternative A, the “No-action” alternative, in the EIS. 40 C.F.R. § 1502.14(d). As to
Alternative B, “Combined Nonlethal Actions,” the NPS met internally to discuss
management of the white-tailed deer population beginning in September 2006. The
results of those meetings were discussed in a Final Internal Scoping Report, which shows
that NPS considered the nonlethal options of chemical reproductive control, fencing of
targeted areas or the entire park, the “hazing” or frightening of the deer, translocation, the
use of chemical repellents, and supplemental feeding to reduce damage to the natural
vegetation. Id. at 267-71. The NPS also formed two scientific teams to review and
discuss deer management options and conditions at the park. Id. at 175. It held several
10
public meetings on its deer management plan and received thousands of comments, and
released the final EIS after a three-year process of internal review and public comment.
Even if alternatives C and D were more viable options than Alternative B by the time the
NPS prepared the final EIS, the record reflects that the NPS seriously considered options
other than using sharpshooters to kill the deer. The NPS included a reasonable range of
alternatives and did not violate the requirements of NEPA.
iii.
FOA contends that the District Court failed to conduct a “probing review” of the
record to determine whether the NPS followed NEPA‟s procedural requirements. FOA
relies principally on Olenhouse v. Commodity Credit Corp., a non-NEPA case from the
Tenth Circuit. 42 F.3d 1560, 1565-66 (10th Cir. 1994). There, instead of reviewing the
administrative record itself, the district court concluded that the record supported the
agency‟s action based on “counsel‟s statements as to what was in the record and material
appended to the government‟s „Motion to Affirm‟” and “isolated bits of this second hand
„evidence.‟” Id. at 1565. The court also supplied reasons for the agency‟s decision which
were not contained in the record and which the agency asserted for the first time in the
district court. Id. at 1576. The Tenth Circuit determined that the court‟s reliance on
evidence outside the administrative record was error, and it reviewed the record itself and
reversed. Id. at 1579-80, 1584.
Even if the District Court‟s analysis in this case focused on its conclusion that
11
increasing the number of coyotes in an urban park environment was against “common
sense,” App. at 17, rather than focusing on the EIS‟s stated reasons for rejecting coyote
predation, its approach is far different from the district court‟s in Olenhouse. Here, it is
clear that the District Court reviewed the record, albeit substituting its own “common
sense” interpretation of the NPS‟s decision (or, at a minimum, accepting a “common
sense” argument by the NPS that was not part of the administrative record). That “error,”
if it is such, does not require remand, as our review permits us to conclude that the NPS
complied with NEPA in determining that coyote predation was an unreasonable
alternative. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc) (“We may affirm
the District Court on any grounds supported by the record.”); see also Olenhouse, 42 F.3d
at 1580 (declining to vacate and remand district court order and choosing to review the
record and rule on the merits at the circuit level).
B.
FOA argues that the District Court should have granted its motion to supplement
the record with three studies addressing coyote hunting habits and tendencies in human
interactions. We will review a district court‟s decision to reject or admit evidence outside
of the administrative record for abuse of discretion. See Nat’l Audubon Soc’y v. Hoffman,
132 F.3d 7, 16 (2d Cir. 1997).
The APA requires a court reviewing an agency action to “review the whole record
or those parts of it cited by a party.” 5 U.S.C. § 706. The Supreme Court has held that
12
“the focal point for judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411
U.S. 138, 142 (1973). FOA argues that certain circuits have adopted a more permissive
approach to allowing extra-record review in NEPA cases. See Lee v. U.S. Air Force, 354
F.3d 1229, 1242 (10th Cir. 2004); Nat’l Audubon Soc’y, 132 F.3d at 14-15; Esch v.
Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). We have not addressed whether a specific
NEPA exception applies, and we will not do so here. FOA‟s proposed extra-record
evidence either (a) does not conflict with the NPS‟s findings; or (b) is irrelevant because
the EIS focuses on the failure of coyotes to control the deer population, not on the issues
surrounding human-coyote interactions. Because the record discloses the factors
considered by the NPS in rejecting coyote predation, and because FOA‟s proposed record
additions do not conflict with those factors, there is no reason to supplement the
administrative record.
III.
We will affirm.
13