National Rifle Ass'n of America v. Potter, Civ. A. No. 84-1348.

• Decision Date: 24 February 1986
• Docket Number: Civ. A. No. 84-1348.
• Parties: NATIONAL RIFLE ASSOCIATION OF AMERICA, et al., Plaintiffs, v. J. Craig POTTER, Acting Assistant Secretary for Fish and Wildlife and Parks, et al., Defendants.
• Court: U.S. District Court — District of Columbia

628 F. Supp. 903

NATIONAL RIFLE ASSOCIATION OF AMERICA, et al., Plaintiffs, v. J. Craig POTTER, Acting Assistant Secretary for Fish and Wildlife and Parks, et al., Defendants.

Civ. A. No. 84-1348.

United States District Court, District of Columbia.

February 24, 1986.

Stephen N. Shulman, Washington, D.C., for plaintiffs.

Frank E. McAnear, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.

MEMORANDUM AND ORDER

JACKSON, District Judge.

In this action for declaratory and injunctive relief plaintiff National Rifle Association of America ("NRA") and plaintiff-intervenor Wildlife Legislative Fund of America ask the Court to set aside a certain regulation promulgated under the aegis of the Secretary of the Interior which prohibit hunting and trapping in the National Park System except where specifically contemplated by Congress.¹ Upon consideration of cross-motions for summary judgment — the principal legal issue being the accuracy of the Secretary's divination of legislative intent and the material facts largely matters of history — the Court finds that the regulation is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706, and defendants' motions for summary judgment will, accordingly, be granted and that of plaintiff denied.²

I.

The first national park, Yellowstone, was created by Congress in 1872 as a "public park or pleasuring ground for the benefit and enjoyment of the people." 16 U.S.C. § 21 (1982). By 1916, 13 national parks and 19 national monuments had been established, responsibility for their administration, however, having been dispersed among a number of government agencies, including the Departments of Interior, Agriculture and War. To provide more cohesive management for this expanding corpus of publicly-owned repositories of the nation's natural and historic heritage, Congress in that year created the National Park Service ("NPS"), whose mission, it said, was:

To promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1 (1982) (hereinafter, the "Organic Act"). The Secretary of the Interior was authorized to "make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks...." 16 U.S.C. § 3 (1982). Although the Secretary was permitted in his discretion to provide "for the destruction of such animals and of such plant life as may be detrimental to the use of any of said parks, monuments, or reservations," id., the paramount objective of the park system with respect to its indigenous wildlife, and the philosophy which came to pervade the new Park Service to whom it was entrusted, was, from the beginning, one of protectionism. Witness an early directive from the Secretary of the Interior to NPS' first director: "hunting will not be permitted in any national park." Administrative Record ("A.R.") Doc. 1 at 70.

Beginning in the late 1930's, Congress began to add to the system a number of "nontraditional" park areas, such as national seashores, lakeshores and scenic river-ways, in many of which Congress itself specifically undertook to authorize hunting, trapping and fishing as permitted recreational activities. In the 1960's, in recognition of the heterogeneous character of the territories it was now overseeing, the Park Service evolved on its own a concept of "management categories" as a means to differentiate the administration required for them. Under the new taxonomy, outlined in a memorandum in July of 1964 from then-Secretary of the Interior Udall to the Director of the Park Service, the park system was divided into three categories — natural, historical and recreational — with the policies for their governance to reflect the nature of the areas and the uses to which they had historically been put. See A.R. Doc. 6. Thus, in the case of recreation areas, which had traditionally accommodated multiple uses, the Park Service began to allow hunting, trapping and fishing on its own initiative if otherwise in accordance with federal, state and local laws. See A.R. Doc. 9 at 32; 31 Fed.Reg. 12,750, 12,754 (1966).

Two subsequent amendments to the Organic Act, however, caused the Park Service to doubt the extent of its autonomy in the matter. In a 1970 amendment, known as the General Authorities Act, 16 U.S.C. §§ 1a-1, 1c (1982), Congress declared:

That the national park system, which began with establishment of Yellowstone National Park in 1872, has since grown to include superlative natural, historic, and recreation areas in every major region of the United States ...; that these areas, though distinct in character, are united through their inter-related purposes and resources into one national park system as cumulative expressions of a single national heritage; ... and that it is the purpose of this Act to include all such areas in the System and to clarify the authorities applicable to the system.

16 U.S.C. § 1a-1 (emphasis added). The Act continued: "each area within the national park system shall be administered in accordance with the provisions of any statute made specifically applicable to that area," as well as any other applicable authorities, "including, but not limited to the Organic Act." 16 U.S.C. § 1c (1982). Eight years later, in a rider to the Redwood National Park Expansion Act, Pub.L. No. 95-250, 92 Stat. 163, Congress reiterated its intention that:

The promotion and regulation of the various areas of the National Park System ... shall be consistent with and founded in the purpose established by the Organic Act, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.

16 U.S.C. § 1a-1 (emphasis added). Perceiving in these amendments an implied reproof for having strayed from the true purpose of the Organic Act (and, specifically, for its "management categories" system), NPS concluded that Congress conceived of the park system as an integrated whole, wherein the Park Service was to permit hunting and trapping only where it had been specifically authorized, or discretion given it to do so, by Congress in the applicable enabling act. See A.R. Doc. 40; NPS Management Policies (1975), A.R. Doc. 18 at I-3; NPS Management Policies (1978), A.R. Doc. 19 at I-3.

Shortly thereafter NPS began the task of revising its regulations to bring them into harmony with the revealed congressional will by abandoning the "management categories." Proposed regulations were first published in the Federal Register on March 17, 1982, 47 Fed.Reg. 11,598 (1982), and, after consideration of the comments received, final regulations, including that presently in dispute, were published on June 30, 1983, to take effect on October 3, 1983. 48 Fed.Reg. 30,252 (1983).³ The contested regulation reads as follows:

§ 2.2 Wildlife protection.

(a) The following are prohibited:

(1) The taking of wildlife, except by authorized hunting and trapping activities conducted in accordance with paragraph (b) of this section.

. . . . .

(b) Hunting and trapping

(1) Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.

(2) Hunting may be allowed in park areas where such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting shall be allowed pursuant to special regulations.

(3) Trapping shall be allowed in park areas where such activity is specifically mandated by Federal statutory law....

(4) Where hunting or trapping or both are authorized, such activities shall be conducted in accordance with Federal law and the laws of the State within whose exterior boundaries a park area or a portion thereof is located. Nonconflicting State laws are adopted as a part of these regulations.

. . . . .

36 C.F.R. § 2.2 (1985) (emphasis added).⁴

II.

Plaintiff NRA filed this action on April 30, 1984, contending that the regulation arbitrarily and capriciously reverses a by-now venerable, and beneficent, Park Service policy of permitting hunting and trapping in recreational areas of the park system in the sound, i.e., conservation-conscious, discretion of individual park superintendents, and that no express congressional command is, or has ever been, necessary to empower it to do so.⁵ Defendants respond that the philosophy of the Park Service, since its first expression in the Organic Act, has always been exclusively protectionist; that hunting and trapping have never been permitted in traditional parks and monuments; and that, while the Service may have succumbed to error in the late 1960's and 1970's, it has now acted to restore itself to grace by conforming its policy to a constant congressional intent of which it was pointedly reminded by the 1970 and 1978 amendments to the Organic Act.

Standing

At the threshold the Court must determine whether plaintiff NRA has standing to bring this action, either on its own behalf or as the representative of its members. It is now familiar learning that Article...