National Wildlife Federation v. National Park Serv., C86-097-K.
| Decision Date | 09 September 1987 |
| Docket Number | No. C86-097-K.,C86-097-K. |
| Citation | 669 F. Supp. 384 |
| Parties | NATIONAL WILDLIFE FEDERATION, Wyoming Wildlife Federation, Plaintiffs, v. NATIONAL PARK SERVICE, U.S. Fish and Wildlife Service, Department of the Interior, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Thomas France, Nat. Wildlife Federation, Missoula, Mont., and Rodger McDaniel, Southeast Wyoming Law Office, Cheyenne, Wyo., for plaintiffs.
Lee M. Kolker, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.
The above-entitled matter comes before this Court on cross-motions for summary judgment, the parties having stipulated to submission of the issues on briefs without the necessity of oral argument.
This action arises as a result of an administrative decision by the National Park Service (Park Service) to keep the Fishing Bridge Campground operating at a reduced level pending the findings of an Environmental Impact Statement (EIS) pertaining to the effect this campground has on the survival of the grizzly bear, a threatened species. As a part of Yellowstone National Park since 1901, Fishing Bridge bears witness to some of the most awe-inspiring and breathtaking scenery, unrivaled in its splendor. In the midst of this grandeur has surfaced a conflict, hardly uncommon to the courts, between man and the animal kingdom.
It is indeed a sad postscript that man's quest for satisfaction has in one way or another led to the destruction, sometimes to the point of extinction, of creatures of extraordinary beauty. Today, the grizzly bear is among the almost 600 species of wildlife designated as threatened or endangered. 50 C.F.R. § 17.11(h). Among the habitats of this threatened species is the area encompassed by the Fishing Bridge Campground. It is with acute awareness of the plight of this nation's threatened and endangered species that this Court proceeds.
The plaintiffs National Wildlife Federation and Wyoming Wildlife Federation assert that as a result of the decision to continue operations at Fishing Bridge Campground, the defendants National Park Service, the United States Fish and Wildlife Service, and the United States Department of Interior are in direct violation of provisions contained in the Endangered Species Act, 16 U.S.C. § 1531 et seq., the National Park Service Organic Act, 16 U.S.C. § 1 et seq., the Administrative Procedure Act, 5 U.S.C. § 500 et seq., and the Concessions Policy Act, 16 U.S.C. § 20 et seq. Each of these will be addressed in turn in the course of this Memorandum Opinion.
All parties have moved for summary judgment. To prevail on a motion for summary judgment, it must be demonstrated to the Court that there exist no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c) of Fed.R.Civ.P. This Court is in agreement with the parties that there exist no genuine issues as to any material fact, thus rendering the matter ripe for summary judgment.
Prior to passage of the Endangered Species Act (ESA), Congress had repeatedly been warned that if nothing were done in the way of legislation, wildlife extinction would occur at an alarming rate. A stark reminder was given to Congress as to the cause of the problem:
Man and his technology has sic continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period.
Hearings on Endangered Species before the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the House Committee on Merchant Marine and Fisheries, 93d Cong., 1st Sess. 202 (1973) ().
16 U.S.C. § 1531(b). Congress went on to declare that "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." 16 U.S.C. § 1531(c)(1).
The Act empowers the Secretary of Interior to promulgate regulations for the determination of endangered or threatened species. 16 U.S.C. § 1533(a)(1). Once a species has been so classified, the Secretary is instructed to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d).
Two provisions are of particular import in this matter. They provide as follows:
16 U.S.C. § 1536(a)(1), (2) (emphasis supplied).
The plaintiffs argue that the factual record prepared by the Park Service does not support leaving the Fishing Bridge Campground open. It is undisputed that the Park Service initially recommended the closing of Fishing Bridge; however, in 1984, the Park Service, acting under the mandate of the National Environmental Protection Act, 42 U.S.C. § 4321 et seq., decided to prepare an Environmental Impact Statement analyzing the impact, in its entirety, of the operation of Fishing Bridge and another campground.
The Court finds no inappropriate behavior on the part of the Park Service in pursuing to make assessments via an EIS. The Court further notes that the Park Service, cognizant of its duties under the ESA to use "the best scientific and commercial data available" will utilize a newly developed computer analysis model that represents the most sophisticated method to date to measure the impact that human activities have on the grizzly bear. Until the results of that EIS are released, sometime this year or early next year, the Park Service has developed an Interim Management Plan to govern activities at Fishing Bridge. Administrative Record, Tab 14. The Park Service seeks this Court's approval to operate Fishing Bridge under this Plan until an EIS is completed.
Following its duty under §§ 1536(a)(2) and 1536(c)(1), the Fish and Wildlife Service concluded that operation of the Fishing Bridge Campground under the Interim Management Plan would not jeopardize the continued existence of the grizzly bear. Against this background, the Court has every confidence in the Park Service plan and, therefore, it is without hesitation that this Court is inclined to grant the motion of the Park Service to continue operating Fishing Bridge under the Interim Management Plan pending the results of the EIS.
Plaintiffs assert that this Court must find that the ESA clearly requires all federal agencies to formulate programs designed to protect and conserve endangered or threatened species. While the affirmative nature of § 1536(a)(1) is beyond dispute, the definition of conservation in § 1532 provides some discretion among conservation measures. The Act defines conservation as:
... the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
16 U.S.C. § 1532(3) (emphasis supplied).
A mere cursory reading of this definition supports the Secretary's discretionary powers as to methods of conservation. However, more than a cursory reading is required to support the Secretary's discretion when it comes to §§ 1536(a)(1) and (2).
The purpose of § 1536(a)(2) is to ensure that the government does not undertake actions, such as building a...
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