Animal Welfare Inst. & Wildlife Preserves, Inc. v. Romero
| Decision Date | 26 February 2019 |
| Docket Number | 17-CV-6952 (SJF)(ARL) |
| Parties | ANIMAL WELFARE INSTITUTE and WILDLIFE PRESERVES, INC., Plaintiffs, v. ALEXCY ROMERO, in his official capacity as Superintendent of FIRE ISLAND NATIONAL SEASHORE, and the UNITED STATES NATIONAL PARK SERVICE, an agency of the United States Department of the Interior, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs Animal Welfare Institute and Wildlife Preserves, Inc. (collectively, "Plaintiffs") commenced this action against the Superintendent of the Fire Island National Seashore Park ("FINS") and the United States National Park Service ("NPS") (collectively "Defendants") claiming inter alia, that the FINS White-Tailed Deer Management Plan and Final Environmental Impact Statement (the "Plan") adopted by the NPS does not satisfy the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §4321 et seq.
Currently before the Court is Plaintiffs' motion pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction preventing Defendants from commencing implementation of part of the Plan that directs the killing or culling of deer at the William Floyd Estate, Motion, Docket Entry ("DE") [37], the first phase of which is set to occur from February 20 through March 31, 2019. Plaintiffs further seek an order enforcing a purported agreement between counsel that no deer would be killed, culled, or hunted during the pendency of this litigation. By order dated February 19, 2019, the Court granted Plaintiffs' a temporary restraining order ("TRO"). Defendants were given an opportunity to respond to the motion, and a hearing was held on February 21, 2019. For the reasons set forth below, the motion is denied in its entirety.
The recitation of facts is limited to those factual allegations pertinent to the motion currently before the Court. In June 2011, the NPS announced its intent to prepare an environmental impact study ("EIS") for a plan to manage deer and vegetation at FINS. Amended Complaint ("Am. Compl.") ¶32. A draft EIS was published in 2014, after which NPS accepted public comment. Id. ¶33, 35. The final EIS was published on December 31, 2015, id. ¶35, and in April 2016, FINS issued a Record of Decision ("ROD") of the FINS White-Tailed Deer Management Plan and Final Environmental Impact Statement (the "Plan"). Id. ¶37.
According to the ROD, it was determined that deer posed a threat to native vegetation, and that browsing by deer at the William Floyd Estate is "resulting in the degradation of elements of the cultural landscape." Declaration of James H. Knapp ("Knapp Decl."), ExA., ROD at 16. In addition, the "high concentration of deer at the William Floyd Estate also contributes to the perceived risk of tick-borne diseases, which may affect visitation at the site," and the habituation of deer to humans has resulted in human-deer interactions that "raise the risk of injury to people and deer and increase the likelihood of property damage by deer." Id. The Plan Objectives as to William Floyd Estate included "manage deer browse to allow for the restoration and preservation of the cultural landscape of the William Floyd Estate and for the regeneration of the forest within the lower acreage of the William Floyd Estate." Id. The Plancalls for a combination of lethal and nonlethal means "to reduce and maintain deer density at a target level of approximately 20-25 deer per square mile." Id. at 5.
On February 11, 2019, the NPS issued a Press Release entitled "National Park Service to Begin Deer Management at William Floyd Estate" announcing that removal actions would be implemented from February 20 through March 31, 2019 at the William Floyd Estate. Declaration of Catherine Pastrikos Kelly ("Kelly Decl."), Ex 5. ("Press Release"). It stated that the removal operations would be carried out "over a period of at least two years to achieve a deer density of approximately 20 to 25 deer per square mile." Id. The Frequently Asked Questions addendum to the Press Release states that the removal operations would occur at the William Floyd Estate while it is closed to the public and would be implemented only by federal employees who are "highly qualified firearm experts experienced in conducting removal operations within lands adjacent to a suburban environment." Id.
Plaintiffs commenced this action on November 29, 2017, and filed an Amended Complaint on April, 10, 2018. They assert five (5) causes of action, two (2) of which are at issue on this motion.1 The Fourth Claim asserts that NPS' decision was arbitrary or capricious and did not satisfy NEPA by failing inter alia, to consider a reasonable range of alternatives to lethal population control methods. Am. Compl., ¶¶76-81. In the Fifth Claim, Plaintiffs allege that the NPS decision violates its Organic Act by failing to satisfy statutory requirements to allow lethal control of deer by hunting, sharpshooting, or capture and euthanasia. Id. ¶¶82-85. Defendants'motion to dismiss the Amended Complaint was submitted on November 18, 2018 and is sub judice.
After the original complaint was filed, counsel for both parties engaged in communications regarding Defendants' request for an extension of time to file an answer. In an email dated February 5, 2018, Plaintiffs' counsel Catherine P. Kelly ("Kelly") wrote the following to Assistant United States Attorney James Knapp ("Knapp"):
Kelly Decl., Ex. 1. Knapp subsequently filed a request of extension of time to answer with the Court, noting Defendants' consent. Letter, DE [14]. After putting forth the reasons for the extension request, the letter states that "[i]n addition, the undersigned has advised Plaintiffs' counsel that the National Park Service will not begin implementing the culling of deer during the pendency of this action or erect fencing around the Sunken Forest through at least September 30, 2018." Id. Magistrate Judge Anne Y. Shields granted the request for an extension of time to answer without reference to either the removal of deer while this action is pending or the erection of fencing. See Elec. Order of 2/6/18.
On February 15, 2019, Plaintiffs moved for a TRO and a preliminary injunction. This Court granted the request for a TRO, and a hearing on the motion was held on February 21,2019. The motion seeks to halt the planned removal operations under two theories: (1) enforcement of the agreement that deer would not be killed, culled or hunted during the pendency of this litigation; and (2) issuance of a preliminary injunction to halt Defendants from taking action "to implement the Plan on the William Floyd Estate, a unit of the Fire Island National Seashore, is so far as that implementation would involve the killing, culling, or hunting of deer." See Motion, DE [37].
In support of their motion, Plaintiffs provide a declaration from John DiLeonardo, a member of the Animal Welfare Institute. Declaration of John DiLeonardo ("DiLeonardo Decl.") at ¶2, DE [38]. He states generally that he enjoys "observing and photographing deer in the wild including on Long Island." Id. ¶7. Regarding the William Floyd Estate, he states that he has visited the site, plans to return this year, and has a "particular interest in visiting. . . to observe wildlife, including deer. Id. ¶10. Indeed, the "opportunity to see deer" is the "primary reason" he visits the William Floyd Estate. Id. ¶13. The harm DiLeonardo anticipates suffering if the removal operations under the Plan proceed is set forth as follows:
Although DiLeonardo attests generally to "deer that I cherish" at the site, he does not state a connection with any particular deer the lethal removal of which would cause him emotional harm. He states that he "strongly oppose[s] the killing of deer" in general, and that the "decision by the NPS to kill deer is horrible and not what I expect from this agency." DiLeoardo Decl. ¶¶ 7, 9. He opposes the decision to use ...
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