WildEarth Guardians v. Nat'l Park Serv.

Decision Date09 January 2013
Docket NumberNo. 11–1192.,11–1192.
Citation703 F.3d 1178
PartiesWILDEARTH GUARDIANS, Plaintiff–Appellant, v. NATIONAL PARK SERVICE, Defendant–Appellee. Safari Club International and Safari Club International Foundation, Intervenors–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Jennifer Barnes, Student Intern Attorney (Michael Harris, Associate Professor & Director, Environmental Law Clinic, with her on the briefs), University of Denver, Sturm College of Law, Denver, CO, for Appellant.

John Emad Arbab, Attorney, Appellate Section (Ignacia S. Moreno, Assistant Attorney General, and Andrew C. Mergen Attorney, Appellate Section, with him on the brief), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellee.

Anna M. Seidman, Safari Club International, Washington, D.C., on the brief for IntervenorsAppellees.

Before KELLY, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This appeal concerns WildEarth Guardians' challenge to the National Park Service's elk and vegetation management plan for Rocky Mountain National Park. WildEarth filed suit in federal district court challenging the plan and the final environmental impact statement the National Park Service (NPS) prepared in conjunction with the plan. WildEarth contends the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also challenges the agency's proposal to allow volunteers to assist the agency in reducing the elk population.

The district court affirmed the agency action, and WildEarth appealed. We find the record supports the agency's decision to exclude consideration of a natural wolf alternative from its environmental impact statement. We also find the agency's interpretation of the National Parks Organic Act and Rocky Mountain National Park Enabling Act persuasive, and that its elk management plan does not violate those statutes.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Rocky Mountain National Park (RMNP), located in northern Colorado, was established in 1915. The Rocky Mountain National Park Enabling Act (RMNP Act) bans hunting or killing wildlifewithin the park, with very limited exceptions. The park has always had a substantial elk population. But most elk predators, especially wolves and grizzly bears, were exterminated in the park area prior to its establishment, and Congress's decision to ban hunting in RMNP allowed the park's elk population to grow without constraint.

In the 1930s, the National Park Service (NPS) became concerned that the growing number of elk threatened the park's vegetation through overgrazing. In 1944, the NPS began to control the number of elk by relocating or killing them. This practice was the norm until 1969, when the NPS changed its elk management policy. The agency theorized that increased hunting in the areas around RMNP would sufficiently control the elk population, as elk tend to wander in and out of the park. This policy was not successful, however, as commercial and residential development near RMNP decreased the number of open spaces where hunting was allowed and RMNP's elk became habituated to residential areas. As a consequence, the number of elk in RMNP has more than tripled since 1969.

Several studies conducted in the 1990s found that the park's elk population is substantially larger, more sedentary, and more concentrated than it would be under natural conditions. As a result, elk overgraze much of the park's vegetation, eliminating some plant species and making it difficult for others to regenerate. In response, the NPS decided it needed a new elk management policy for the park, both to reduce the overall number of elk and to make the population fluctuate from year to year, as would occur under natural conditions. The NPS expected this would also have a beneficial effect on the park's vegetation.

In August 2002, the NPS assembled an interagency planning team to develop a new elk management plan. The participating agencies included the United States Forest Service, the Colorado Division of Wildlife (CDOW), 1 and several nearby counties and municipalities, with the NPS designated as the lead agency.

In May 2003, the NPS published a notice in the Federal Register of its intent to prepare a new elk and vegetation management plan for RMNP and an environmental impact statement (EIS) for the plan. 68 Fed.Reg. 32,084–02 (May 29, 2004). The NPS solicited public comments through a variety of channels, including newsletters, a website, and public meetings.

The NPS received around 1,100 public comments on its proposal, which it used to develop a preliminary draft of alternatives for the management plan. In July 2004, the agency publicly released these draft alternatives. One of the proposed alternatives was reintroducing a self-sustaining wolf population to RMNP (the natural wolf alternative). The NPS convened a meeting of biologists and other experts in March 2005 to discuss the feasibility of the natural wolf alternative. And once again, the agency sought public comments on the proposed alternatives.

Based on the second round of public comments and feedback from its experts, the NPS selected four alternative plans for analysis in an EIS. In a publicly released August 2005 newsletter discussing these alternatives, the NPS announced it would analyze the introduction of a small number of intensively managed wolves into the park, in conjunction with the use of sharpshooters, but would not include the natural wolf alternative in its EIS. The agency explained this alternative was infeasible due to lack of support from coordinating agencies, concerns by neighboring communities, the high potential for human-wolf conflicts, and the likelihood that management of wolves in the park would be expensive and time-consuming, distracting from the goal of the NPS's plan—managing elk.

In April 2006, the NPS publicly released a draft EIS that considered five alternative management plans: (1) the current plan (the no-action alternative); (2) rapid reduction of the elk population, which the agency identified as its preferred alternative; (3) gradual reduction of the elk population; (4) a combination of managed killing and elk contraception; and (5) a combination of managed killing and the introduction of a small number of intensively managed gray wolves. 71 Fed.Reg. 20,414–03 (Apr. 20, 2006). The draft EIS reiterated the NPS's reasons for excluding the natural wolf alternative.

The NPS again sought public comment on its draft EIS and held several public meetings during the comment period. The agency then considered the more than 3,100 comments it had received and prepared a final EIS.

The agency released its final EIS in December 2007. 72 Fed.Reg. 70,342–01 (Dec. 11, 2007). Although the agency had identified rapid reduction as its preferred alternative in the draft EIS, the final EIS selected a different alternative, gradual reduction. The final EIS also made a small but important change—expanding the definition of those who could assist the NPS with killing elk to include qualified volunteers. The final EIS also took pains to distinguish killing elk for management purposes, which it called culling, from hunting. The final EIS defined “culling” as a highly controlled method for managing an elk population and “hunting” as a loosely regulated recreational activity.

After the final EIS was released, WildEarth sought judicial review of the NPS's decision. WildEarth alleged the NPS acted arbitrarily and capriciously by excluding consideration of the natural wolf alternative from its EIS. WildEarth also alleged the NPS's decision to allow volunteers to participate in culling activities was tantamount to hunting, and violated the RMNP Act.

The district court entered judgment for the NPS, concluding the agency took a hard look at the relevant data and articulated a rational connection between that data and its conclusion that the natural wolf alternative was infeasible. The court also found the agency's distinction between hunting and culling was reasonable, and that the use of volunteers to assist in culling activities did not violate the RMNP Act.

II. Discussion
A. Standard of Review

We give no deference to a district court's review of agency action, reviewing its decision de novo. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 710–11 (10th Cir.2010). But our review of the NPS's actions is considerably more deferential. We review the NPS's compliance with NEPA under the Administrative Procedure Act (APA), which authorizes us to set aside agency action only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir.2012).

When reviewing agency action, our task is to ensure the agency examined the relevant data and articulated a rational connection between that data and its decision. Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008); FCC v. Fox TV. Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Our deference to the agency is more substantial when the challenged decision involves technical or scientific matters within the agency's area of expertise. Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 691 (10th Cir.), cert. denied,––– U.S. ––––, 131 S.Ct. 602, 178 L.Ed.2d 436 (2010). Accordingly, we will not set aside an agency's decision unless:

the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its...

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