Davis v. Latschar, CIV.A. 97-0232 PLF.
| Decision Date | 31 December 1998 |
| Docket Number | No. CIV.A. 97-0232 PLF.,CIV.A. 97-0232 PLF. |
| Parties | Paul DAVIS III, et al., Plaintiffs, v. John LATSCHAR, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Katherine A. Meyer, Eric R. Glitzenstein, Howard Crystal, Meyer & Glitzenstein, Washington, DC, for Plaintiffs.
Caroline Blanco, David F. Shuey, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, D.C., for Defendants.
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. § 1 et seq., (2) its management policies implementing the Organic Act, (3) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and (4) the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq. Because the Court finds that the Park Service acted consistently with the Organic Act and its implementing guidelines and that it has complied with the procedures of both NEPA and NHPA, the Court grants summary judgment for the Park Service which therefore is permitted to reinitiate its deer management program.
Gettysburg and Eisenhower are contiguous parcels of land in rural Pennsylvania that are managed by the National Park Service. Gettysburg was established to "preserve and protect the resources associated with the Battle of Gettysburg and the Soldiers' National Cemetery, and to provide understanding of the events that occurred [there], within the context of American history." See Draft General Management Plan and Environmental Impact Statement for Gettysburg National Military Park ("Draft GMP"), Plaintiffs' Exh. E at 7; see also An Act to Establish a National Military Park at Gettysburg, Pennsylvania, § 3, 28 Stat. 651 (1895) () (The Superintendent of the park shall "ascertain and definitely mark the lines of battle of all troops engaged in the battle of Gettysburg"). Eisenhower was established to preserve the cultural and natural resources of the home of President Dwight D. Eisenhower and to interpret his life and career. See Final Environmental Impact Statement for the White-Tailed Deer Management Plan ("Final EIS") at 3-5, Administrative Record ("A.R.") at 2200-02.
By the early 1980's, the Park Service had become concerned about deer overpopulation in the area of Gettysburg and Eisenhower. In 1985, at the request of the Park Service, Dr. Gerald Storm of Pennsylvania State University and his colleagues began a study of the impact of the deer on the parks "because of concern by the National Park Service resource managers about the intensive deer browsing of tree seedlings in historic woodlots, increasing consumption of farm crops by deer, and high number of deer and automobile collisions." Gerald L. Storm et al., Executive Summary of Population Status, Movements, Habitat Use, and Impact of White-Tailed Deer ("Storm Report") at 1, A.R. at 207. Corroborating the concerns of the resource managers, Dr. Storm found that the browsing of the deer depleted the oak and white ash seedlings needed to maintain the woodlots' historic appearance and that the deer consumed a large percentage of the corn and wheat crop. Id. at 3-4, A.R. at 209-10. Dr. Storm recommended that the Park Service reduce the deer population density to a level "at or below the level recommended for Adams County by the Pennsylvania Game Commission." Id. at 4, A.R. at 210. This level was 20 deer per forested square mile. Id.
Even before the Storm Report was completed, the Park Service had begun to evaluate alternatives for controlling deer population density. In February of 1990, Dr. Gerald Wright of the University of Idaho sent a 100-page draft environmental impact statement ("EIS") to the Park Service that recommended fencing off the protected areas as the preferred approach. See R. Gerald Wright, Deer Management Alternatives for Gettysburg National Military Park and Associated Environmental Analysis; A Draft Report (1990), A.R. at 3944-4054. While Dr. Wright's report received some initial favorable reviews, it was subsequently rejected as substantively and procedurally inadequate and therefore was used only as a research document. See May 7, 1990 Memorandum from Jacob J. Hoogland, Chief, Environmental Quality Division, to Bob Gift, Regional Director, Mid-Atlantic Region, A.R. at 354 ().
In August of 1992, the Park Service published its Notice of Intent to Prepare a Draft Environmental Impact Statement in the Federal Register; the notice described a range of alternatives that might be used to control deer population density. See 57 Fed.Reg. 3806 (1992), A.R. at 984. The Park Service noticed and held two open meetings to gather information from the public on the desired scope of the EIS. See Minutes of the January 7 Meeting on White-tailed Deer Management at Gettysburg National Military Park/Eisenhower National Military Site Held at Penn State, A.R. at 1111-15; Environmental Impact Statement Meeting, February 27th, 1993, A.R. at 1169-75. In both the draft environmental impact statement that it released in 1994 and the final environmental impact statement it released in 1995, the Park Service explicitly considered a range of alternatives, including the fencing alternative proposed by Dr. Wright and endorsed by plaintiffs in this litigation. See Draft Environmental Impact Statement for the White-Tailed Deer Management Plan ("Draft EIS") at 24-42, A.R. at 1888-1906; Final EIS at 24-42, A.R. at 2221-41.1 The Park Service then published its Record of Decision ("ROD"), choosing to manage the population density through a controlled harvest (i.e., shooting the deer to reduce their density), and began the hunt in the fall of 1996. Record of Decision ("ROD"), A.R. at 3570-76.
Plaintiffs brought suit in February of 1997 to enjoin the shooting of the deer. After briefing had begun on plaintiffs' motion for summary judgment, the Park Service moved to stay the litigation, arguing that it would eliminate the issues in the lawsuit by suspending the deer management program while revisiting its compliance with the applicable laws. See Defendants' July 25, 1997 Motion for Temporary Stay of Litigation at 1-2. The Park Service also revealed that soon after plaintiffs filed their complaint it had initiated procedures to comply with the National Historic Preservation Act. See Transcript of August 12, 1997 Motions Hearing at 7-8. After the parties agreed that the deer management program would not be reinitiated without an Order from this Court and formulated procedures to ensure plaintiffs' involvement in the NHPA process, the Court stayed the litigation. See August 15, 1997 Joint Stipulation.
The Park Service now has conducted what it believes to be a sufficient NHPA process. It has prepared a Section 106 report analyzing the possible "adverse effects" of the deer management program on Gettysburg and Eisenhower, including its effect upon "location, design, setting, materials, workmanship, feeling [and] association," 36 C.F.R. § 800.9(b), and it has concluded that the program would have no "adverse effects." See Section 106 Case Report; White-Tailed Deer Management, A.R. at 6352-62. The Park Service then sought the concurrence of the State Historic Preservation Officer ("SHPO") and, pursuant to the parties' joint stipulation, allowed the plaintiffs to submit their own materials. See Letter from Dr. John A. Latschar, Superintendent of Gettysburg National Military Park to Brenda Barrett, Director, Pennsylvania Bureau of Historic Preservation, A.R. at 6349-51; Letter from Katherine Meyer to Dr. Brent D. Glass and Brenda Barrett, A.R. at 6363-70. The SHPO agreed with the Park Service that there would be no "adverse effects." See Letter from Brenda Barrett to Dr. John A. Latschar, Superintendent of Gettysburg National Military Park, A.R. at 6371. The same process was used to seek the approval of the Advisory Council on Historic Preservation ("ACHP"). After obtaining the views of the Keeper of the National Register on plaintiffs' arguments, the ACHP also agreed with the finding of "no adverse effect." See Letter from Don L. Klima, Advisory Council on Historic Preservation to Dr. John A. Latschar, Superintendent of Gettysburg National Military Park, A.R. at 6504-06.2
On June 19, 1998, the Park Service declared its intent to reinitiate the deer management program. In August of 1998, the Park Service released a new draft General Management Plan ("draft management plan" or "Draft GMP") for Gettysburg. Based on new research on the Battle of Gettysburg and its relationship to Gettysburg's terrain, the draft management plan recommended adjusting the landscape to better reflect its state at the time of the battle. See Draft General Management Plan and Environmental Impact Statement for Gettysburg National Military Park ("Draft GMP"), Plaintiffs' Exh. E at 59-60. In the draft management plan's preferred alternative, the Park Service proposed cutting 576 acres of non-historic woodlands, altering 278 acres of non-historic woodlands to reflect historic woodlots and shifting the agriculture to...
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