Fund for Animals v. Mainella

• Citation: 283 F.Supp.2d 418
• Decision Date: 26 September 2003
• Docket Number: No. CIV.A. 02-11855-PBS.,CIV.A. 02-11855-PBS.
• Parties: The FUND FOR ANIMALS, et al., Plaintiffs, v. Fran MAINELLA, Director National Park Service, et al., Defendants.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

283 F.Supp.2d 418

The FUND FOR ANIMALS, et al., Plaintiffs, v. Fran MAINELLA, Director National Park Service, et al., Defendants.

No. CIV.A. 02-11855-PBS.

United States District Court, D. Massachusetts.

September 26, 2003.

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Eugenia M. Carris, United States Attorney's Office, Boston, MA, for Fran Mainella, Gale Norton, United States Dept. of the Interior.

Kimberly Ockene, Jonathan Lovvorn, Katherine Meyer, Meyer & Glitzenstein, Washington, DC, Paul R. Collier, III, Cambridge, MA, for Barbara Birdsey, Bernard Kaplan, Massachusetts Society For The Prevention of Cruelty To Animals, The Fund For Animals, The Humane Society Of The United States, Loretta Neilsen.

Daniel J. Dwyer, Hanify & King, Professional Corporation, Boston, MA, Daniel J. Lyne, Hanify & King, P.C., Boston, MA, Barbara Miller, Birch, Horon, Bittner and Chcort, P.C., Washington, DC, for Barnstable County League of Sportsmen's Clubs, Inc., Massachusetts Sportsmen's Council, Inc., U.S. Sportsmen Alliance Foundation, Michael J. Veloza.

William P. Horn, Birch, Horton, Bittner and Chcrot, P.C., Washington, DC, for Massachusetts Sportsmen's Council, Inc.

Anna M. Seidman, Vienna, VA, for Safari club Intern., Safari Club Intern. Foundation.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

Plaintiffs¹ challenge hunting on the Cape Cod National Seashore (the "Seashore") on the ground that the National Park Service ("NPS") has failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the implementing regulations, 40 C.F.R. § 1500.1 et seq. Plaintiffs also assert that NPS's pheasant hunt program,² which releases non-native species into the Seashore ecosystem, violates NEPA as well as NPS's own General Management Policies.

After hearing, the Court ALLOWS Plaintiffs' motion for summary judgment on the ground that NPS has failed to comply with NEPA. Accordingly, I order NPS to prepare an environmental assessment of the hunting program. However, I decline to enjoin the hunting program during the pendency of the environmental review. I also enjoin the pheasant hunting program until NPS issues an environmental assessment.

II. FACTUAL BACKGROUND

The following facts are contained in the administrative record ("AR") and are undisputed, except where stated.

The Seashore, a unit of the National Park system, consists of 44,000 acres in outer Cape Cod and includes lands owned by the Commonwealth of Massachusetts, six local towns, and 600 private landowners. Every year, the Seashore hosts 5 million visitors. The Seashore enabling legislation of 1961 provides: "The Secretary may permit hunting and fishing ... within the seashore in such areas and under such regulations as he may prescribe ...." 16 U.S.C. § 459b-6. In 1963, seven years before NEPA became law, the Seashore promulgated special regulations to allow hunting. See 36 C.F.R. § 7.67 (1963). The regulations permitted hunting of waterfowl and upland game during the open season prescribed by the Commonwealth in accordance with federal, state, and local laws for the protection of wildlife, "except in developed and/or concentrated public use areas and areas of scientific or historic interest designated by the Superintendent ...." Id. The regulations also applied to the carrying of firearms in the Seashore.

Then, in 1966, NPS as a whole implemented regulations allowing hunting within national recreational areas, including the Seashore, in locations designated for such purposes on a map available for public inspection in the office of the Superintendent. See 36 C.F.R. § 2.31 (1966). Although the hunting regulations were amended from time-to-time, they remained substantially the same until 1981. Under a Memorandum of Understanding dated December 30, 1968, the Seashore worked cooperatively with the Commonwealth of Massachusetts on wildlife management within the Seashore. Both the Commonwealth and NPS share jurisdiction over hunting. (AR-I-E-1.)

In September 1981 NPS engaged in a NEPA process for proposed changes to its general hunting regulations. In that process, it produced an Environmental Assessment ("EA") and issued a Finding of No Significant Impact ("FONSI"), stating:

If [a park's enabling legislation] permits hunting, on a discretionary basis, special regulations for that park will be required in order to implement a hunting program. This will ensure that there is an opportunity for public comment in the process of decision making in such cases. Parks whose legislation requires that hunting or trapping or both be permitted will do so under appropriate restrictions to protect the integrity of park resources and the safety of visitors.

(AR-I-A-42.)

Special regulations pertaining to hunting at the Seashore, published on April 30, 1984, provide:

(i) Hunting. (1) Hunting is allowed at times and locations designated as open for hunting.

(2) Only deer, upland game, and migratory waterfowl may be hunted

(3) Hunting is prohibited from March 1 through August 31 of each year.

36 C.F.R. § 7.67 (1984) (AR-I-A-141.)

The Federal Register of April 30, 1984, which re-codified the Seashore hunting regulations, states: "As required by [NEPA], the Service has prepared environmental assessments on those portions of this rulemaking which are other than correcting or clarifying in nature and has made a [FONSI]." (AR-I-A-140.) However, there is no EA for Seashore hunting in the administrative record, and no evidence concerning its content. NPS suggests, without record support, that it might have been destroyed pursuant to NPS's normal record disposition schedule. See 44 U.S.C. § 3102(2) (requiring agencies to create management plan to "facilitate . . . disposal of records of temporary value"). Plaintiffs argue that it is unlikely an EA on hunting was prepared at all as the 1983-1984 special regulation on hunting was simply a recodification of the previously-existing regulation. The mystery as to whether an EA was ever prepared on hunting remains unresolved. In any event, the hunting regulations for the Seashore have not significantly changed since 1984.

In 1998 NPS produced an EIS for a General Management Plan for the entire Seashore. In explaining the need for a General Management Plan, the Seashore discussed the changes evident since the release of the 1970 Master Plan. The area's population had nearly doubled in size, the 1998 EIS pointed out, "creating pressure on open space and regional infrastructure (e.g., ground water and transportation)." (AR-III-B-EIS-3.) The previous two decades, the 1998 EIS further stated, had seen a considerable increase in year-round residents. While national seashore visitation basically reached a plateau, "the pattern of visitor use has shifted slightly, with somewhat fewer visitors during the peak summer season and more during the spring and fall shoulder seasons." (Id.) It also pointed out: "Plant, marine, and wildlife communities have been disrupted by the introduction of nonnative species, increased hunting and fishing, and ditching and spraying to control mosquitoes." (Id. at 6.) (Emphasis added.)

Just as the 1998 EIS explicitly stated the reasons for its creation, it also specifically adumbrated the limitations of its intended scope. The document stated:

This Final Environmental Impact Statement is a programmatic statement. The proposed action and alternatives each consist of a basic management framework for future decision making; site-specific details and recommendations are generally not included. Consequently, the statement presents an overview of potential impacts relating to the proposed program for each alternative. In the future, implementation of specific actions included in the approved final general management plan would require the preparation of more detailed environmental assessments. These documents would be tiered to this programmatic impact statement.

(AR-III-EIS-iii.) (Emphasis added.)

The Seashore considered three alternatives in the 1998 GMP/EIS. Alternative 1 was a continuation of the "current management" plan, often referred to as the "no action" or "minimum requirements" alternative. Alternative 2 was a proposed action that would seek to maintain a balance between resource protection and public use. Alternative 3 would build on Alternative 2's initiatives and focus on NPS's taking a more active role in directing efforts to preserve natural and cultural resources within the national seashore. (AR-III-EIS-35.) Alternative 2 was chosen.

The 1998 GMP/EIS's proposed (and ultimately selected) action with respect to Seashore hunting is described as follows:

A consistent policy toward stocking programs for hunting and fishing would be developed in cooperation with the Massachusetts Division of Fish and Wildlife. The use of native species would be encouraged in such programs.

Hunting and fishing within the national seashore (focusing on native species) would be allowed at levels compatible with the purposes of the seashore and with sustainable populations and ecosystems. Efforts would be made to minimize conflicts with other visitor uses and private property. Public safety would continue to be addressed by use area designations, patrols, and other monitoring techniques. Habitat would not be altered merely to support game animals. Shellfishing activities would not be altered by the proposed plan; they would continue to be managed by the state and local communities.

(Id. at 74.) In its "impacts" section, the 1998 EIS describes hunting impacts for the selected alternative:

The National Park Service would work with the Massachusetts Division of Fish and Wildlife to evaluate wildlife management activities at the seashore, especially those involving stocking and reintroductions of both native and nonnative species. The NPS goal of restoring natural, self-sustaining ecosystems could lead to limiting or eliminating the use of...