Davis III v.Latschar

• Decision Date: 22 February 2000
• Docket Number: No. 99-5037,99-5037
• Citation: 202 F.3d 359
• Parties: (D.C. Cir. 2000) Paul Davis III, et al.,Appellants v. John Latschar, Superintendent, Gettysburg National Military Park, et al.,Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 359

202 F.3d 359 (D.C. Cir. 2000)

Paul Davis III, et al.,Appellants v. John Latschar, Superintendent, Gettysburg National Military Park, et al.,Appellees

No. 99-5037

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 1999

Decided February 22, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv00232)

Katherine A. Meyer, with whom Howard M. Crystal was on the briefs, argued the cause for appellants.

Evelyn S. Ying, Attorney, U.S. Department of Justice, with whom Lois J. Schiffer, Assistant Attorney General, and Robert L. Klarquist, Attorney, U.S. Department of Justice, were on the brief, argued the cause for appellees.

Before Ginsburg and Garland, Circuit Judges, and Buckley, Senior Circuit Judge.

Opinion for the court filed by Senior Judge Buckley.

Buckley, Senior Judge:

In 1995, John Latschar, the Superintendent of Gettysburg National Military Park ("Gettysburg"), instituted a program to curtail the over-browsing of wooded and crop areas by white-tailed deer in Gettysburg and the neighboring Eisenhower National Historic Site. The program provides for the annual killing of deer by park employed marksmen after dark from October through March until a desired density of deer per wooded square mile is achieved. Paul Davis III, five other residents of Gettysburg, Pennsylvania, and three animal rights organizations (collectively, "Davis") seek an order enjoining the program on the basis that, in approving it, the National Park Service had failed to comply with its own enabling statute and policies implementing that statute, the National Environmental Policy Act, and the National Historic Preservation Act.

On December 31, 1998, the district court issued an opinion in which it granted summary judgment in favor of the Superintendent the Director of the National Park Service, and the Secretary of the Interior, all of whom were joined as parties defendant (collectively, "Superintendent"). See Davis v. Latschar, 83 F.Supp.2d 1, 2 (D.D.C. 1998) ("1998 opinion").Davis thereupon filed a motion requesting the court to amend the opinion "to correct ... the Court's characterization of the record in the case." Motion to Amend and Reconsider the Court's Ruling ("motion to amend"), reprinted in Joint Appendix ("J.A.") at 920. In a memorandum opinion and order issued on January 26, 1999, the court denied the motion, again entered judgment for the defendants, and lifted the stay that had caused the Park Service to suspend its implementation of the deer management program. See Davis v. Latschar, 83 F.Supp.2d 1, 11-12 (D.D.C. 1999)("mem. op.").

We affirm the district court's summary judgment in favor of the Superintendent for the reasons stated in the 1998 opinion, which we adopt as our own and reprint as an appendix hereto. To District Judge Paul L. Friedman's thorough and well-reasoned analysis, we would add only the following comments concerning two issues raised by Davis in his motion to amend and before this court in which he claims that the 1998 opinion mis characterizes the record. The first of these relates to Davis's argument that the Park Service was required by the National Environmental Policy Act to prepare a supplemental environmental impact statement ("SEIS") for the deer management program to take into account changes in park management recommended in a newly proposed "General Management Plan" ("GMP") that has since been adopted by the Park Service. These called for significant reductions in wooded acreage and for changes in agricultural patterns at Gettysburg that the Park Service acknowledged would result in a reduction in the park's deer population. The second relates to Davis's argument that the Park Service failed to address the impact of the deer management program on the contemplative atmosphere of Gettysburg as he alleges it was required to do under the National Historic Preservation Act.

A. National Environmental Policy Act

In the memorandum Davis submitted in support of the motion to amend ("Davis memorandum"), reprinted in J.A. at 922-30, he complained that the 1998 opinion's discussion of the SEIS issue contained a misleading footnote and improperly relied on an argument the Park Service's counsel made for the first time before the district court. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) ("[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency."). The footnote complained of states that "[it] appears from the record ... that ... plaintiffs never requested a supplemental EIS or argued that one was required until they raised the issue in this Court." Davis, 83 F.Supp.2d at 10 n 7; Appendix at 15-16 n.7.In support of his motion to amend, Davis submitted, as new evidence suggesting that he had, in fact, raised the issue before the Park Service, a copy of a letter proposing a settlement of the case in which he urged the Service to initiate an SEIS. If the court's failure to take cognizance of facts not presented to it was indeed error, in this case it was harmless error. As Judge Friedman correctly noted in dismissing the motion to amend, the footnote "was at most an alternative ground for the Court's conclusion that a supplemental EIS was not required in this case." Mem. op. at 3.

The Park Service argument to which Davis objected, and on which the district court relied, is to be found in the last sentence of the following excerpt from the 1998 opinion:

Plaintiffs argue that [the removal of several hundredacres of non-historic woodlands and changes in agricultural patterns] will lead to a reduction in the deer population. Once again, plaintiffs have improperly focused the inquiry. The deer management program is intended to maintain the deer population density, not the total deer population.

Davis, 83 F. Supp.2d at 9-10, (emphasis in original); Appendix at 14.

Davis describes the distinction between deer population (i.e., the total number of deer within Gettysburg) and deer density (which is measured in terms of the number of deer per wooded square mile within the park) as a post hoc rationalization. Davis is mistaken. The deer management program is itself predicated on the need to control density. See, e.g., Final Environmental Impact Statement, Appendix E at 152 ("The National Park Service has decided the initial April deer density goal will be 25 deer per square mile of forested study area....").

It is worth noting that because the program is based on density rather than population, it is remarkably sensitive to the kinds of changes in the Gettysburg landscape that are called for in the GMP. The Park Service recognizes that "[t]he precise density of deer that would result in an acceptable level of browsing that would allow Gettysburg [National Military Park] and Eisenhower [National Historic Site] to meet their landscape management objectives is unknown." Id. at 151. Because of uncertainty regarding the optimal density level, the Park Service erred on the side of preserving deer by setting an initial goal that is less stringent than the 20 deer per square mile supported by the Park Service's own research and recommended by the Pennsylvania Game Commission for the county in which the parks are located. The program calls for ongoing monitoring of the effects of deer browsing on cropfields and woodlots so that the deer density goal may be adjusted in light of actual experience in meeting the parks' landscape objectives. Id. at 152-53.

B. National Historic Preservation Act

Davis maintains that the Park Service violated the National Historic Preservation Act ("NHPA") because, in assessing the impact of the nightly killing of deer on the parks, it ignored what he believed to be its obligation to protect the "contemplative" atmosphere of the Gettysburg battlefield. Davis memorandum at 5-6. The record, however, confirms that the Park Service gave the substance of his argument full consideration. See, e.g., Section 106 Case Report at 9 (discussing claim that deer management program would adversely affect the " 'solemn and contemplative purpose' of the park"); Letter from Superintendent Latschar to Brenda Barnett (Aug. 19, 1997) ("Audible effects are temporary, limited, proportionally decreasing, and minimized by muzzle suppressors.").Furthermore, the Park Service provided Davis's position and its own evaluation of it to the Pennsylvania Historical and Museum Commission and the Advisory Council on Historic Preservation, with whom it was required to consult. See 36 C.F.R. §§ 800.2(b)(2), (c) (1999). Each of these bodies agreed that the program would have no adverse effect on the qualities that make Gettysburg eligible for inclusion in the National Register of Historic Places.

In light of the foregoing, the district court's order denying the motion to amend and entering judgment for the Superintendent is

Affirmed.

APPENDIX

Paul DAVIS III, et al., Plaintiffs

v.

John LATSCHAR, et al., Defendants

OPINION

Dec. 31, 1998

FRIEDMAN, District Judge.

The National Park Service (the "Park Service") seeks to reinitiate its deer management program for Gettysburg National Military Park ("Gettysburg") and Eisenhower National Historic Site ("Eisenhower"). The program, which calls for park rangers to shoot deer in a controlled harvest to maintain the population density, was in effect in 1996 and 1997. The Park Service suspended the program in July of 1997 because of the pendency of this lawsuit and stipulated that it would not reinitiate the program without an Order from this Court. It has now requested such an Order.

Plaintiffs argue that the Court should enjoin the deer management program because the Park Service has acted contrary to (1) the National Park Service Organic Act ("Organic Act"), 16 U.S.C. S 1 et seq., (2) its management policies implementing the ...