Moore v. Kempthorne

• Decision Date: 11 December 2006
• Docket Number: Civil No. 2:06cv659.
• Citation: 464 F.Supp.2d 519
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Danielle MOORE, Kristie Phelps, In Defense of Animals, American Environment Foundation, and Animal Welfare Institute, Plaintiffs, v. Kirk KEMPTHORNE, Secretary, Department of the Interior, and H. Dale Hall, Director, U.S. Fish and Wildlife Service, Defendants.

464 F.Supp.2d 519

Danielle MOORE, Kristie Phelps, In Defense of Animals, American Environment Foundation, and Animal Welfare Institute, Plaintiffs, v. Kirk KEMPTHORNE, Secretary, Department of the Interior, and H. Dale Hall, Director, U.S. Fish and Wildlife Service, Defendants.

Civil No. 2:06cv659.

United States District Court, E.D. Virginia, Norfolk Division.

December 11, 2006.

COPYRIGHT MATERIAL OMITTED

David B. Graham, Kaufman & Canoles, P.C., Williamsburg, VA, Frank A. Edgar, Jr., Daniel F. Basnight, Marina Liacouras Phillips, Kaufman & Canoles, P.C., Newport News, VA., for Plaintiffs.

Chuck Rosenberg, United States Attorney, Anita K. Henry, Assistant United States Attorney, Norfolk, VA, The Honorable Alberto R. Gonzales, United States Attorney General, Washington, DC, for Defendants.

OPINION & ORDER

MORGAN, District Judge.

Plaintiffs Danielle Moore, Kristie Phelps, In Defense of Animals, the American Environment Foundation, and the Animal Welfare Institute ("Plaintiffs"), seek a temporary restraining order ("TRO") to prevent Defendants, the Department of the Interior and the U.S. Fish and Wildlife Service ("Defendants"), from conducting a limited black bear hunt in the Great Dismal Swamp National Wildlife Refuge ("GDSNWR") on December 1 and 2, 2006. Docs. 1, 3. This Court heard argument on this matter on the afternoon of November 30, 2006, and ruled from the bench.

In light of the Complaint (Doc. 1), Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 2), and Memorandum in Support (Doc.3)"submitted by Plaintiffs, as well as argument at the hearing and evidence admitted by this Court, the Court FOUND that Plaintiffs are not entitled to a TRO against Defendants because Plaintiffs failed to show that they would suffer irreparable harm should the hunt go forward as planned, nor did they demonstrate a probability of ultimately prevailing on the merits. Accordingly, the Court DENIED Plaintiffs' Motion for a Temporary Restraining Order.¹

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY²

In 1974, the GDSNWR was established within the limits of the cities of Chesapeake and Suffolk, Virginia. Doc. 1 ¶¶ 37, 38. The GDSNWR is the largest National Wildlife Refuge located in Virginia, comprising 111,203 acres of federally-protected land designated for preservation and compatible recreation. See id.; Doc. 3, Ex. 2 at Guiding Principles of the National Wildlife Refuge System (unnumbered p. 7). The GDSNWR provides a habitat for most of the black bears remaining in eastern Virginia, with a population estimated to range between 250 and 350 in number. Doc. 1 ¶ 40. Studies conducted in 1988 and 2005 found that the bear population in the GDSNWR has remained stable over the. past 20 years. Id. ¶ 41.

The United States Fish and Wildlife Service ("FWS") "is the principal federal agency responsible for conserving, protecting, and enhancing fish and wildlife, plants and their habitats for the continuing benefit of the American People." Doc. 3, Ex. 2 at Unnumbered p. 2. Among its myriad responsibilities, the FWS is charged with management of the 96-million acre National Wildlife Refuge System. Id. The FWS has designated hunting as a compatible wildlife-dependent recreational use of the refuge system and has listed it as a component of the National Wildlife Refuge System's mission. See Doc. 3, Ex. 2 at Guiding Principles of the National Wildlife Refuge System; National Wildlife Refuge System Improvement Act, Pub.L. No. 105-57, 111 Stat. 1252 (1997). Nevertheless, before it may conduct any category of activity with a designated National Wildlife Refuge, the FWS must first present an "opening package" through the Administrative Procedure Act's ("APA") rulemaking process and notice requirements. See 5 U.S.C. § 553(b)(3)(A); 605 FW 2.9 (2006 version of applicable FWS regulation; applicable 1998 version not in record). In 1979, an opening package was published in the Federal. Register that would allow hunting of big game, and specifically deer, in the GDSNWR. Black bear and white-tailed deer are the only big game in the Commonwealth of Virginia.

In July 1998, the FWS published in the Federal Register proposed changes to its regulations. Id. ¶ 42. With specific regard to the GDSNWR, the proposed rule reiterated that it would be open to "Big Game Hunting" and did not purport to make changes to that classification in the published "proposed rule." The proposed rule instead noted two changes to hunting conduct in the GDSNWR; namely, the amendments would prohibit shooting across roads and possession of alcoholic beverages. Id. The FWS received public comments during the month of August 1998, including a letter from the Fund for Animals, Inc., requesting "documents pertaining to the decision to permit bear hunting within the Great Dismal Swamp National Wildlife Refuge (GDSNWR)." Hearing Ex. 3. On September 3, 1998, the FWS published the final rule, which stated — following the designation for Big Game Hunting — that "Hunters may hunt deer and bear on designated areas of the refuge subject to the following conditions...."³ Id. ¶ 43.

In 2001, the FWS began a new study for wildlife management in the GDSNWR, including the impact of conducting a bear hunt within the GDSNWR. In developing the Comprehensive Conservation Plan and Environmental Assessment ("CCP/EA" or "the Plan"),⁴ the FWS went through an extensive public scoping process, which included multiple opportunities to engage the public in crafting the CCP/EA. This process included four (4) different scoping meetings,⁵ at which members of the public provided the FWS with comments on how they would like the Refuge to be managed and what activities they would like permitted on the GDSNWR. Following the scoping meetings, these public comments were categorized to determine the focus of public concern. The FWS also met with a variety of other stakeholders, including state agencies and non-profit organizations, who provided the FWS with additional scoping information that the FWS considered before evaluating the proposed options and drafting the CCP/EA.

In March 2006, the FWS released the Draft CCP/EA, which included an outline of rationales, objectives, and strategies for black bear management, habitat protection and restoration, and hunting opportunities. Doc. 3, Ex. 1 at 91-92, 114-16, 119-22. Following publication of the Draft CCP/ EA, the FWS provided a 41-day period for public comment, between March 13 and April 26, 2006. This public comment period was initiated by a Federal Register notice as to the availability of the Draft CCP/EA and the subjects it entailed, including the bear hunt. The FWS also issued press releases to over forty (40) media outlets regarding the availability of the Plan and scheduled public meetings where further public comment would be taken. Three (3) meetings, in addition to the four (4) previous scoping meetings, were held in March 2006. The black bear hunt was discussed at these meetings and staff from the FWS was available to take comments and answer any questions. Written comments were also received during this time period, of which eight (8) regarded bear hunting in the GDSNWR. The written comments included arguments both for and against bear hunting.⁶

The Final CCP/EA was published in July 2006. Doc. 3, Ex. 2. The Plan includes the provisions regarding rationale, objective, and strategy for the revised programs, as stated above, as well as the Compatibility Determination for the Black Bear Hunt ("Compatibility Determination"). See id. at 91-99, 229-32 (the record is not clear as to whether this Compatibility Determination was also included with the Draft CCP/EA). The Compatibility Determination explains the purpose of the GDSNWR, that public hunting of black bears is a "priority use," how, when, and why the use will be conducted, the anticipated impact of this use, as well as what stipulations are necessary to ensure that the use is compatible with the mission of the National Wildlife Refuge System. Id. at 229-31.

The Final CCP/EA is prefaced by a Finding of No Significant Impact ("FONSI"), which is required where, following the completion of a CCP/EA, the FWS determines that the changes entailed "will not have a significant impact on the quality of the human environment in accordance with Section 102(2)(c) of the National Environmental Policy Act." See id. at iii-iv. A FONSI must be issued when the FWS declines to issue an Environmental Impact Statement ("EIS"). See id.; 40 C.F.R. § 1501.4.

The Final CCP/EA also addresses public comments that were submitted during the comment period. Id. at 186, 190-91. The agency took pains to address two specific concerns about the bear hunt. Id. The first comment suggested that more research needed to be done to understand the dispersal and movement of the bears. Id. at 186. The FWS agreed that "more knowledge is needed on the overall demography and ecology of the `Dismal Swamp' black bear population before any large scale management for this species can occur." Id. The second comment questioned the accuracy of the perceived natural effect of the bear hunt. Id. at 190. The FWS responded by reciting the two (2) studies that were relied upon, the studies' conclusions, and the considerations the FWS took into account to ensure minimal impact on the bear population, such as scheduling the hunt for a date when pregnant female bears would be in their dens. See id. at 190-91. The record contained numerous letters, including letters from State wildlife organizations, in support of the bear hunt. See supra n. 6.

In October 2006, the FWS issued the 2006 Refuge Black Bear Regulations ("Bear Regulations"), officially permitting the hunting of black bears in the GDSNWR. Doc. 3, Ex. 5. These regulations provide that American black bear hunting season in the GDSNWR will be open on December 1 and 2, 2006. Id. at 1. The number of bears which may be killed, or "harvested," is limited to twenty (20) over...