Pub. Emps. for Envtl. Responsibility v. U.S. Dep't of the Interior, Civil Action No. 10–1274 (ESH).

• Citation: 832 F.Supp.2d 5
• Decision Date: 28 December 2011
• Docket Number: Civil Action No. 10–1274 (ESH).
• Parties: PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants, Safari Club International; National Rifle Association of America, Defendant–Intervenors.
• Court: United States District Courts. United States District Court (Columbia)

832 F.Supp.2d 5

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff,
v.
U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants,
Safari Club International; National Rifle Association of America, Defendant–Intervenors.

Civil Action No. 10–1274 (ESH).

United States District Court,
District of Columbia.

Dec. 28, 2011.

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Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Washington, DC, for Plaintiff.

Anna Kristina Stimmel, U.S. Department of Justice, Washington, DC, for Defendant–Intervenors.

MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Public Employees for Environmental Responsibility (“PEER”) has sued the United States Department of the Interior, Secretary of the Interior Kenneth Salazar, the United States National Park Service (“NPS”), and NPS Director Jonathan Jarvis (collectively “defendants”), claiming violation of the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701–706, and the National Environmental Policy Act of 1969 (“NEPA”). 42 U.S.C. §§ 4321–4370(e). PEER challenges the denial of its petition for special regulations restricting hunting in the Mojave National Preserve and NPS's failure to supplement the environmental impact statement with an assessment of the denial's impact on the threatened desert tortoise population. Pending before the Court are plaintiff's and defendants' cross-motions for summary judgment. Also pending is a motion for summary judgment filed by defendant-intervenors Safari Club International and National Rifle Association of America (collectively “intervenors”). For the reasons stated herein, this Court grants defendants' motion for summary judgment and denies the motions filed by intervenors and plaintiff.

BACKGROUND

The desert tortoise, Gopherus agassizzi, is a large, herbivorous reptile found in the Mojave and Sonoran deserts of southern California and other areas of the southwestern United States. (AR3 at 27.¹) In general, desert tortoises inhabit rocky terrain and slopes, as well as flats and bajadas, and spend most of their lives in burrows or caves, emerging to feed and mate in the late winter and early spring and remaining active through the spring and summer. (AR1 at 8, 32.)

Since the 1970s, the dwindling population of the desert tortoise has evoked increasing concern. ( Id. at 16.) The species' “catastrophic” decline has been attributed to various factors including predation by humans and wildlife, habitat destruction, disease, and fragmentation which results from urbanization, agricultural development, grazing, mining, and roadways. ( Id. at 8, 21.) Recovery is slow because desert tortoises do not reach sexual maturity until 13–20 years of age, have low reproductive rates even when they reach reproductive potential (AR2 at 24), and experience high pre-productive adult mortality rates—approximately 98%. (AR1 at 41 (explaining that “desert tortoise populations are not capable of rapid growth” even when survivorship rates are normal).)

In 1990, after administrative advocacy by environmental groups, the United

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States Fish and Wildlife Service (“FWS”) listed the desert tortoise as “threatened” under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. §§ 1531–1544.² (AR1 at 385.) In February 1994, the FWS designated critical habitat ³ for the Mojave population, which is a regulatory definition for desert tortoises in the regions north and west of the Colorado River. (AR1 at 385.) In June 1994, as required by the ESA, the FWS published a recovery plan ⁴ (“1994 Recovery Plan”) that analyzed the causes for the decline and set forth a long-term plan for eventually delisting the desert tortoise. ( Id. at 23.) The 1994 Recovery Plan identified numerous reasons for the decline in desert tortoise populations ( id. at 17–24), and recommended various actions to aid in recovery. ( Id. at 70–77.) It identified the “discharge of firearms, except for in the context of hunting big game or upland game birds from September through February,” as one of the activities that “should be prohibited through [selected areas within the desert tortoises' range] because [it is] generally incompatible with desert tortoise recovery.” ( Id. at 71–72.)

The Mojave National Preserve (“Preserve”), located in southern California, is a 1.6–million acre unit of the National Park System that was established in 1994 by the California Desert Protection Act (“CDPA”), 16 U.S.C. §§ 410aaa–42. (AR1 at 467–68.) As part of the National Park System, the Preserve must be managed in accordance with the preservation mission as provided in the Organic Act of 1916. 16 U.S.C. § 1. Given this mission, hunting is not ordinarily permitted in National Park System units. (AR1 at 430.) This prohibition, however, is subject to certain congressionally-authorized exceptions ( see AR1 at 430, 536), such as the CDPA, which expressly allows hunting in the Preserve. 16 U.S.C. §§ 410aaa–46. When hunting is authorized in a National Park System unit, NPS must, under the NPS Management Policies, publish special regulations to govern hunting unless a formal waiver is issued.⁵ NPS, Management Policies 2006 at 103 (Policy 8.2.2.6), available athttp:// nps. gov/ policy/ mp 2006. pdf.

NPS is required to develop a general management plan to govern the Preserve. (AR1 at 546.) This process is governed by the NPS Management Policies and must accord with NEPA. ( Id. at 433.) In addition, since about half of the Preserve is designated as critical habitat for the threatened desert tortoise ( id. at 467–68), nearly all actions taken in the Preserve

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must comply with ESA procedures.⁶ ( See id. at 434). Effectively, this means that NPS must consult with the FWS about actions that may affect a threatened or endangered species ( id. at 434), and assess the impact of any significant proposed action by creating an Environment Impact Statement (“EIS”).

On September 5, 1995, NPS published in the Federal Register a Notice of Intent to create the General Management Plan (“GMP”) to govern the Mojave National Park. ( Id. at 545.) Between 1995 and 1997, NPS elicited public input by holding twenty scoping ⁷ meetings, convening workshops attended by a total of approximately 250 people, publishing five newsletters, and creating a website. ( Id. at 553–57.) As required under the ESA, NPS requested a BO from the FWS regarding the impact of the proposed action (the creation of the GMP) on threatened or endangered species in the Preserve. ( Id. at 356.)

In 1998, NPS published a draft version of the GMP and accompanying EIS (“Draft EIS/GMP”). ( Id. at 545.) Following publication of the 1998 Draft EIS/GMP, NPS held eleven public meetings, attended numerous meetings of the Mojave Advisory Council, and received approximately 390 comment letters from various individuals after soliciting feedback in the Federal Register. ( Id.) In addition, NPS received approximately 1,800 identical postcards from members of environmental groups. ( Id.)

“Due to the large number of substantial changes required as a result of public comments on the 1998 draft, [NPS] decided to rewrite the [draft GMP/EIS].” ( Id.) To reflect the changes to the EIS/GMP, NPS sought modifications to the BO and, in September 2000, released the Revised Draft EIS/GMP for a new round of public comment. ( Id.) Following the September 2000 publication, NPS held eleven more public meetings and received 202 written comments. ( Id.) After taking into account this second round of input, NPS prepared an Abbreviated Final EIS/GMP intended to be integrated into the Revised Draft EIS/GMP. ( Id.)

On July 6, 2001, the FWS issued a BO for the GMP, which concluded that the “proposed action” (the GMP) was not likely to jeopardize the desert tortoise and was therefore in compliance with the ESA.

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( Id. at 403.) This version of the BO was based upon the GMP, which provided that “NPS will work with the California Department of Fish and Game [ (“CDFG”) ] to limit hunting in the Mojave National Park [... which] would eliminate the discharge of firearms when desert tortoises are active in the spring.” ( Id. at 362.) On September 7, 2001, the Superintendent of the Preserve requested that the FWS amend the BO to allow for hunting of cottontail rabbits (“cottontails”) and jackrabbits from September to January and, on September 19, 2001, the FWS modified the BO accordingly. ( Id. at 556.)

On September 21, 2001, the NPS Regional Director responsible for the Preserve signed the Record of Decision (ROD) for the Mojave Abbreviated Final EIS/GMP. ( See id. at 544–57.) In the ROD, NPS explained that it had considered three alternatives with regard to restricting hunting. ( Id. at 546–53.) With regard to hunting, Alternative 1 provided that NPS would pursue the promulgation of special hunting regulations that would allow for the hunting of big game and upland game birds, plus a limited season for cottontails and jackrabbits; Alternative 2, the “no-action” or status quo alternative, provided that then-existing state regulations would remain unchanged; and Alternative 3 allowed for hunting of game and non-game species permitted under state law from July through January. ( Id. at 547–50.) NPS ultimately selected Alternative 1 (pursuing special hunting regulations) which was reflected in the final version of the GMP. ( Id. at 553, 556.)

In April 2002, NPS published the final EIS/GMP which outlined the proposed management of the Preserve. ( Id. at 420–583.) Consistent with the ROD, the GMP indicated that NPS would seek special regulations under state law in consultation with the CFDG to restrict hunting, allowing it only during the period of September to January or early February and to limit hunting to only big game, some small game (cottontails and jackrabbits) and upland game birds. ( Id. at 505.)

On June 20, 2002, PEER and other environmental groups submitted a petition (“Petition”) to defendants asking that they promulgate the...