THE FUND FOR ANIMALS, et al., Plaintiffs, v. FRAN MAINELLA, Director National Park Service, et al., Defendants.
CIVIL ACTION NO. 02-11855-PBS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
283 F. Supp. 2d 418; 2003 U.S. Dist. LEXIS 16860; 57 ERC (BNA) 1283
September 26, 2003, Decided
DISPOSITION: [**1] Plaintiffs’ motion for summary judgment was allowed and Defendants’ motions for summary judgment were denied.
COUNSEL: For Fran Mainella, Gale Norton, Defendants: Eugenia M. Carris, United States Attorney’s Office, Boston, MA, LEAD ATTORNEY.
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, Plaintiffs: Paul R.
Collier, III, Cambridge, MA, LEAD ATTORNEY.
For
Barnstable County League of Sportsmen’s Clubs, Inc., Massachusetts
Sportsmen’s Council, Inc., U.S. Sportsmen Alliance Foundation, Michael
J. Veloza, Intervenor Defendants: Daniel J. Dwyer, Hanify & King,
Professional Corporation, Boston, MA, LEAD ATTORNEY.
For
Massachusetts Sportsmen’s Council, Inc., Intervenor Defendant: William
P. Horn, Birch, Horton, Bittner and Chcrot, P.C., Washington, DC, LEAD
ATTORNEY.
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, Plaintiffs: Jonathan R. Lovvorn, Meyer & Glitzenstein,
Washington, DC, LEAD ATTORNEY.
For
Barnstable County [**2] League of Sportsmen’s Clubs, Inc.,
Massachusetts Sportsmen’s Council, Inc., U.S. Sportsmen Alliance
Foundation, Michael J. Veloza, Intervenor Defendants: Daniel J. Lyne,
Hanify & King, Professional Corporation, Boston, MA, LEAD ATTORNEY.
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, Plaintiffs: Katherine A.
Meyer, Meyer & Glitzenstein, Washington, DC, LEAD ATTORNEY.
For
Massachusetts Sportsmen’s Council, Inc., Intervenor Defendant: Barbara
Miller, Birch, Horton, Bittner and Chcrot, P.C., Washington, DC, LEAD
ATTORNEY.
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, Plaintiffs: Kimberly D. Ockene, Meyer & Glitzenstein,
Washington, DC, LEAD ATTORNEY.
For Safari Club International, Safari Club International Foundation, Movants: Anna M. Seidman, Vienna, VA, LEAD ATTORNEY.
JUDGES: PATTI B. SARIS, United States District Judge.
OPINIONBY: PATTI B. SARIS
OPINION: [*422] MEMORANDUM AND ORDER
September 26, 2003
[**3] SARIS, U.S.D.J.
I. INTRODUCTION
Plaintiffs
n1 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, n2
[*423] which releases non-native species into the Seashore ecosystem,
violates NEPA as well as NPS’s own General Management Policies.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1
In addition to The Fund For Animals, the plaintiffs are: The Humane
Society of the United States, Massachusetts Society for the Prevention
of Cruelty to Animals, Barbara Birdsey, Bernard Kaplan, and Loretta
Neilsen.
n2 On October 17,
2002, this Court denied a motion to temporarily enjoin the pheasant
hunt program, Fund for Animals v. Mainella, 02-11855-CIV-PBS (D. Mass.
Oct. 17, 2002) at 5, on the ground that Plaintiffs, who sued at the
last minute, had not demonstrated irreparable harm. On November 18,
2002, Plaintiffs amended their complaint to include not just the
pheasant program but the general hunting program as well.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**4]
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 [**5] (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 [**6] 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:
[*424] (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 [**7] 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, [**8]
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 [**9] 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 [*425]
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 [**10]
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 exotic species. As [**11] described under alternative 1,
studies would be undertaken to determine the impacts of exotics,
especially pheasants, on native species.
The
impacts of other hunting and fishing programs on animals and their
habitat would be similar to those described in alternative 1. In
addition, an increased effort would be made to monitor and manage
hunted species.
(Id. at 236.)
The description of the impact of alternative one (the status quo) states:
Wildlife
management actions are based primarily on state policy rather than NPS
policy and include ‘put and take’ programs using exotic species. Very
little is known about the impacts of stocking exotic species to create
hunting opportunities.
Biologists
consider the white-tailed deer population on the Outer Cape to be at an
appropriate level (NPS 1994a). Deer hunting is generally viewed as an
effective way to control population levels. Overpopulation of deer in
other areas in the East where deer hunting is prohibited has caused
significant impacts on vegetation. There is little scientific data
about the impacts of hunting on other species (such as grouse, quail,
rabbit, raccoon, crow, coyote, fox, and squirrel).
[**12]
(Id. at 207.)
NPS
currently allows hunting of over a dozen native species of waterfowl
and upland game, including ducks, grouse, sparrows, woodchucks, crows,
rabbits, raccoons, opposums, foxes, weasels, squirrels, coyotes and
deer. NPS authorizes hunting from September through February 28 at “the
times and location” the Seashore superintendent designates “as open for
hunting.” (AR-I-B-61.) NPS permits hunting as close as 150 feet from
pedestrian and bicycling trails, and as close as 500 feet from private
homes. Hunters may bring with them as many as six unleashed dogs per
group. (Id.) [*426]
C. The Pheasant Release and Hunt
Pheasants
are not native to Cape Cod. Since the 1960’s, and perhaps as far back
as the 1940’s, farm-raised pheasants have been stocked in three areas
of the Seashore each October, specifically for the purpose of the
pheasant hunt. These three areas (Hatches Harbor in Provincetown,
Boundbrook in Wellfleet, and the Marconi Wildlife Management area in
Wellfleet) cover 2,750 acres, about seven percent (7%) of the total
acreage. Pheasant hunting takes place on six Saturdays in the fall.
In
1996, the Seashore decided to conduct a two-year study of the
environmental [**13] impact of the pheasant hunt program. Before the
study was begun, the Seashore produced an EA and a FONSI on the
“interim pheasant management program,” dated August 1996, stating that
the study itself would have no significant impact on the environment.
The EA stated that the purpose of the study was to “advise critically
and objectively and provide data to NPS managers for an appropriate
management decision.” (AR-II-A-6.) The EA stated: “the hunting and
stocking program would be allowed to continue on an interim basis while
a comprehensive study is undertaken on hunting activities, pheasant
survival, and potential impacts to native flora and fauna.” Id.
The
report that resulted from this study, Survival and Ecological Impacts
of Released Ring-Necked Pheasants on Cape Cod National Seashore,
authored primarily by University of Massachusetts researcher C. Adam
Bump, concluded in January 1999 that the released pheasants were not in
the field long enough to have a negative impact on the seashore
ecosystem and that “released pheasants on Cape Cod do not survive into
the spring in numbers substantial enough to maintain a breeding
population.” (AR-II-B-148.) However, the report also [**14]
recommended methods for further study “to more accurately assess the
energetic contribution of released pheasants” to native predator
species in the Seashore. (Id. at 168.)
The
1998 EIS for the General Management Plan also addressed the pheasant
stocking program. The proposed alternative in the plan states: “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.” (AR-III-EIS-74.) In the impacts section of the 1998
EIS, the document adds that “studies would be undertaken to determine
the impacts of exotics, especially pheasants, on native species.” (Id.
at 236.)
On October 7, 2002, on the eve of
this Court’s hearing on Plaintiffs’ motion for a temporary restraining
order, the Deputy Assistant Secretary for Fish and Wildlife and Parks
granted a request for a “waiver of Management Policies to the extent
necessary to allow the pheasant stocking/hunting program to continue
uninterrupted while we [NPS] continue to examine options for phasing it
out.” The Management Policies state: “Adherence to policy is
mandatory [**15] unless specifically waived or modified by the
Secretary, the Assistant Secretary, or the Director.”
III. DISCUSSION
A. The Statutory and Regulatory Framework
NEPA
has two basic goals. First, it requires government agencies “to
consider every significant aspect of the environmental impact of a
proposed action.” Vermont Yankee Nuclear Power Corp. v. Natural
Resources Def. Council, Inc., 435 U.S. 519, 553, 55 L. Ed. 2d 460, 98
S. Ct. 1197 (1978). Second, it ensures [*427] that an agency will
“inform the public that it has indeed considered environmental concerns
in its decisionmaking process.” Baltimore Gas and Elec. Co. v. Natural
Resources Defense Council, Inc., 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103
S. Ct. 2246 (1983). NEPA, however, does not impose any substantive
requirements on federal agencies; its dictates are procedural only. See
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 104 L.
Ed. 2d 351, 109 S. Ct. 1835 (1989).
NEPA
provides that agencies should, inter alia, “assure for all Americans
safe, healthful, productive, and aesthetically and culturally pleasing
surroundings” and “attain the widest [**16] range of beneficial uses
of the environment without degradation, risk to health or safety, or
other undesirable and unintended consequences.” 42 U.S.C. § 4331(b).
NEPA requires all federal agencies to consider the environmental
consequences of “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(c). NEPA’s
implementing regulations define “major Federal action[s]” to “include
new and continuing activities.” 40 C.F.R. § 1508.18(a) (emphasis
added). A NPS Handbook on NEPA states:
CEQ [the Council on
Environmental Quality, responsible for promulgating NEPA’s implementing
regulations] defines federal actions subject to NEPA evaluation to
include ‘continuing activities’ (1508.18) in addition to new projects
or programs. If your park is making an explicit or a tacit decision to
continue with an activity that may have significant impacts to the
environment, and either NEPA has never been done or an outdated or
inadequate document was used in deciding to take the original action,
you should initiate the NEPA process and prepare a document for public
review. [**17]
(AR-VI-A-163.)
Before commencing such actions, agencies must produce a “detailed
statement,” known as an Environmental Impact Statement (“EIS”),
addressing the environmental impact of the action and possible
alternatives to the action. Id.
If an
agency is uncertain as to whether its proposed action constitutes a
“major Federal action[] affecting the quality of the human
environment,” it must prepare a preliminary Environmental Assessment to
determine whether an EIS is needed. See 40 C.F.R. § 1501.4. The EA is a
“concise public document” that serves to “briefly provide sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact.”
40 C.F.R. § 1508.9 (a) (1). If an agency chooses to produce an EA
before, or in lieu of, a full EIS, the EA “shall include brief
discussions of the need for the proposal, of alternatives as required
by section 102 (2) (E) [of the NEPA statute], of the environmental
impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted.” 40 C.F.R. § 1508.9(b) [**18] The
agency must involve the public “to the extent practicable” in preparing
the environmental assessment. 40 C.F.R. § 1501.4(b).
To
determine whether an action has a significant impact, the agency must
apply ten “intensity” factors. 40 C.F.R. § 1508.27. One factor is the
degree to which the “proposed action” affects public health or safety.
§ 1508.27(a)(2). Others are “the degree to which the effects on the
quality of the human environment are likely to be highly
controversial,” § 1508.27(a)(4), and “unique characteristics of the
geographic area.” § 1508.27(b)(3).
If
after preparing an EA the agency determines that no EIS is needed, the
agency must issue a Finding of No Significant Impact explaining why its
proposed [*428] action will have no significant impact on the
environment. 40 C.F.R. § 1501.4(e). See 40 C.F.R. §§ 1508.9, 1508.13.
The FONSI must be made available to the affected public. § 1504.3(b).
“An EA aims simply to identify (and assess the ‘significance’ of)
potential impacts on the environment . . . .” Sierra Club v. Marsh, 769
F.2d 868, 875 (1st Cir. 1985) [**19] (distinguishing between an EA and
an EIS). n3
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3
Agencies may also invoke a “categorical exclusion” for “a category of
actions which do not individually or cumulatively have a significant
effect on the human environment and which have been found to have no
such effect in procedures adopted by a Federal agency in implementation
of [NEPA’s] regulations and for which, therefore, neither an
environmental assessment nor an environmental impact statement is
required.” 40 C.F.R. § 1508.4. Defendants make passing assertions in
their briefs that hunting may be categorically excluded from NEPA
procedures, but do not press the point. The Court deems the argument
waived.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
In
certain circumstances, the agency is obligated to produce a
supplemental environmental report: “Agencies shall prepare supplements
to either draft or final environmental statements if (i) the agency
makes substantial changes in the proposed action that are relevant to
environmental concerns; or (ii) there are significant new [**20]
circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts.” See 40 C.F.R. §
1502.9(c). “If there remains ‘major Federal action’ to occur, and if
the new information is sufficient to show that the remaining action
will ‘affect the quality of the human environment’ in a significant
manner or to a significant extent not already considered, a
supplemental EIS must be prepared.” Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 374, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989)
(quoting 42 U.S.C. § 4332(2)(C)). Although CEQ regulations do not
explicitly require agencies to supplement EA’s, some courts have held
that NEPA requires an agency to supplement an out-of-date EA. See Price
Road Neighborhood Ass’n v. USDOT, 113 F.3d 1505, 1509 (9th Cir. 1997)
(holding that the standard for supplementing an EA is the same as for
an EIS); Coalition for a Livable West Side v. Postal Service, 2000 WL
1264256 *3-4 (S.D.W.V. 2000).
NEPA
requires that an agency take a “hard look” at the environmental
consequences of a proposed action before [**21] pursuing it. Baltimore
Gas and Electric Co., 462 U.S. at 97. The statute dictates that an EIS
must contain a “detailed statement” of the environmental impacts of and
reasonable alternatives to the proposed action. 42 U.S.C. § 4332(C)
(emphasis added). The First Circuit has repeatedly underlined the word
detailed in interpreting this statutory provision, noting that it
“‘connotes the careful, reasoned and fully explained analysis which we
think Congress intended.'” Dubois v. United States Dep’t of
Agriculture, et. al., 102 F.3d 1273, 1285 (1st Cir. 1996) (quoting
Silva v. Lynn, 482 F.2d 1282, 1284 n.2 (1st Cir. 1973)). NEPA’s
implementing regulations also flesh out what is to be included in a
statutorily-required environmental impact statement. See generally 40
C.F.R. §§ 1502.1-1502.25. For example, the regulations state that an
EIS shall include discussions of:
(a) Direct effects and their significance.
(b) Indirect effects and their significance.
(c)
Possible conflicts between the proposed action and the objectives of
Federal, regional, State, and local [**22] . . . land use plans,
policies and controls for the area concerned.
[*429] (d) The environmental effects of alternatives including the proposed action . . . .
(e) Energy requirements and conservation potential of various alternatives and mitigation measures.
(f)
Natural or depletable resource requirements and conservation potential
of various alternatives and mitigation measures. . . .
(h) Means to mitigate adverse environmental impacts.
40 C.F.R. § 1502.16 (emphasis added; internal cross-references omitted). The regulations further require that:
Agencies
shall insure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact
statements. They shall identify any methodologies used and shall make
explicit reference by footnote to the scientific and other sources
relied upon for conclusions in the statement.
40 C.F.R. § 1502.24.
The
courts have “applied ‘a rule of reason in determining whether an EIS
contains a reasonably thorough discussion of the significant aspects of
the probable environmental consequences.'” Dubois, 102 F.3d at
1287 [**23] (summarizing statutory and regulatory requirements of an
EIS) (citations omitted). “One aspect of this determination is whether
the agency has gone ‘beyond mere assertions and indicated its basis for
them.’ The agency ‘must explicate fully its course of inquiry, its
analysis and its reasoning.'” Id. (citations omitted).
B. Judicial Review
Plaintiffs
have the burden of proof in challenging the agency’s action under NEPA.
See Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995). Judicial
review of a federal agency’s compliance with NEPA is governed by
section 10 of the Administrative Procedure Act (the “APA”), 5 U.S.C. §
706(2)(A). See Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 202
(1st Cir. 1999). Thus, “agency action must be set aside if the action
was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law’ or if the action failed to meet statutory,
procedural, or constitutional requirements.” Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 28 L. Ed. 2d 136, 91 S.
Ct. 814 (1971) (quoting APA, 5 U.S.C. § 706), overruled [**24] on
other grounds by Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97
S. Ct. 980 (1977). “While this is a highly deferential standard of
review, it is not a rubber stamp. The reviewing court must undertake a
‘thorough, probing, in-depth review’ and a ‘searching and careful’
inquiry into the record.” Airport Impact Relief, 192 F.3d at 203
(citations omitted). An agency’s decision to issue an EA and a FONSI in
lieu of an EIS is evaluated under the “arbitrary and capricious”
standard. Marsh, 490 U.S. at 377 (“Because analysis of the relevant
documents ‘requires a high level of technical expertise,’ we must defer
to the ‘informed discretion of the responsible federal agencies.'”)
(citations omitted).
An agency’s failure
to initiate any NEPA process, that is, its failure to prepare even an
EA and a FONSI for an action, should be reviewed under a
less-deferential reasonableness standard. See Northcoast Environmental
Center v. Glickman, 136 F.3d 660, 667 (9th Cir. 1998) (applying
reasonableness standard to “threshold agency decision[]” as to whether
tree fungus management program required NEPA process); Sugarloaf
Citizens Ass’n v. Federal Energy Regulatory Comm’n, 959 F.2d 508, 512
(4th Cir. 1992) [**25] (“When an agency makes the threshold
determination that its actions do not constitute [*430] a ‘major
Federal action,’ the question concerning the applicability of NEPA is
reviewed for reasonableness under the circumstances.”) (emphasis
removed) (citations omitted); Goos v. I.C.C., 911 F.2d 1283, 1292 (8th
Cir. 1990) (applying reasonableness standard to “threshold issue of
NEPA applicability in the first instance.”). The difference between the
“arbitrary and capricious” standard and the “reasonableness” standard
is “not of great pragmatic consequence.” Marsh, 490 U.S. at 377 n. 23.
C. The Status Quo
Defendant-intervenors
(but not NPS) argue that NEPA is not applicable to the Seashore’s
hunting program because it was in place before NEPA became law.
However, an ongoing federal program that was initiated prior to NEPA is
not exempt from NEPA obligations. See Jones v. Lynn, 477 F.2d 885, 889
(1st Cir. 1973) (holding “‘the only correct interpretation [of NEPA]
would seem to be that if the requirements of the Act can feasibly be
applied – even if the project in question was begun prior to the
enactment of NEPA – then they should in fact [**26] be applied.'”)
(citation omitted); Boston Waterfront Residents Ass’n v. Romney, 343 F.
Supp. 89, 91 (D. Mass. 1972) (applying NEPA to HUD-financed building
project begun before NEPA but continuing after it).
An
agency is required to examine the environmental consequences of ongoing
federal programs that began before NEPA, but never received NEPA
review. In Lee v. Resor, 348 F. Supp. 389, 394 (M.D. Fla. 1972), for
example, plaintiff challenged an annual herbicide spraying program that
had begun twenty years before NEPA was passed. It was a “continuing
project . . . which has no definite termination date but which is
intended to continue indefinitely.” Id. Reasoning that the herbicide
program was “surely one which would have required [] an impact
statement if it had been commenced after January 1, 1970,” the court
held that “the sweeping language of the Act [NEPA] indicates a
legislative intent favoring application of NEPA to continuing
projects.” Id. at 395. Although the court ordered the defendant to
perform a NEPA analysis of the program, it did not halt the herbicide
spraying in the meantime, noting that neither NEPA nor [**27] caselaw
“appears to preclude the Court from requiring that a NEPA impact
statement be prepared within a prescribed time period, while the
project is allowed to continue.” Id. at 396. See also National
Organization for the Reform of Marijuana Laws v. United States Dep’t of
State, 452 F. Supp. 1226, 1234 (D. D.C. 1978) (declining to enjoin
federal agency’s herbicide spraying of marijuana crops but requiring
agency “forthwith to complete the required environmental impact
statement and circulate it for comment and consideration.”).
Defendant-intervenors
also argue that no EA is needed for a federal action that does not
change the status quo. See Upper Snake River Chapter of Trout Unlimited
v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (concluding that no EIS was
required on the operations of a completed dam where defendants were
“simply operating the facility in the manner intended . . . . doing
nothing new, nor more extensive, nor other than contemplated when the
project was first operational.”); City and County of San Francisco v.
United States, 615 F.2d 498, 501 (9th Cir. 1980) (rejecting NEPA
challenge to Navy’s lease [**28] of shipyard: “the Navy was not
required to evaluate the environmental consequences of the lease as if
the Navy were proposing to establish this multi-million [*431] dollar
industrial complex for this first time.”).
However,
an agency must determine if conditions have so changed, either with
respect to the action or with respect to the environment in question,
that a new EA is required. See generally Oregon Natural Resources
Council, 490 U.S. at 372 (federal agencies have a duty to take a “hard
look” at their proposed actions even after they have received initial
approval and must supplement NEPA processes where there “‘are
significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts'”)
(citations omitted). See also Fund for Animals v. Thomas, 326 U.S. App.
D.C. 412, 127 F.3d 80, 83-4 (D.C. Cir. 1997) (holding that no EIS would
be required for federal agency’s decision to turn game-baiting policy
over to states where agency produced EA and FONSI concluding that “the
environmental consequences” of the action “would be negligible” since
it would not significantly alter the status quo); Committee for Auto
Responsibility v. Solomon, 195 U.S. App. D.C. 410, 603 F.2d 992, 1003
(D.C. Cir. 1979) [**29] (holding that no EIS need be prepared for its
decision to lease a parking facility to private company where EA
indicated that lease would not alter environmental status quo). When an
agency decides that conditions have not changed sufficiently to trigger
NEPA, however, it must state its reasons in an EA.
Defendants
repeatedly point out that Plaintiffs did not submit any comments on the
1998 GMP/EIS, and have not challenged the general hunting program
before filing this lawsuit. Plaintiffs explain that the notice in the
Federal Register for the 1998 EIS did not point out that the NEPA
process involved the hunting program. However, even if Plaintiffs were
asleep at the switch, the failure to submit comments does not bar this
action under the doctrine of laches so long as the challenge is timely.
Cf. Jones, 477 F.2d at 892 (noting that laches is disfavored in
environmental cases: “most fundamental . . . is the observation of
Chief Judge Friendly that the ‘tardiness of the parties in raising the
issue cannot excuse compliance with NEPA; primary responsibility under
the Act rests with the agency.'”) (quoting City of New York v. United
States, 337 F. Supp. 150, 160 (E.D.N.Y. 1972)). [**30]
D. Federal Involvement
Defendant-intervenors
(but not the NPS) also argue that the state is primarily responsible
for the hunting programs, and that there is therefore insufficient
federal participation for the programs to constitute a “major Federal
action.” 40 C.F.R. § 1508.18(a) defines “major Federal actions” to
include “new and continuing activities, including projects and programs
entirely or partly financed, assisted, conducted, regulated, or
approved by federal agencies . . . .” Cf. Mayaguezanos por la Salud y
el Ambiente v. United States, 198 F.3d 297, 302 (1st Cir. 1999)
(holding that in determining whether a challenged private action may be
deemed federal for purposes of NEPA, “we look to whether federal
approval is the prerequisite to the action taken by the private actors
and whether the federal agency possesses some form of authority over
the outcome”). “Federal ‘approval’ of another party’s action does not
make that action federal unless the federal government undertakes some
‘overt act’ in furtherance of that other party’s project.” Defenders of
Wildlife v. Andrus, 201 U.S. App. D.C. 252, 627 F.2d 1238, 1244 (D.C.
Cir. 1980) [**31] (declining to impose NEPA process on federal
decision not to intervene in Alaska’s wolf hunt program where federal
agency did “nothing more than fail to [*432] prevent the other
party’s action from occurring.”); Fund for Animals v. Thomas, 932 F.
Supp. 368, 371 (D.C. 1996) (holding that Forest Service policy of
deferring to states on game-baiting was not a major federal action).
The
administrative record reveals that NPS makes a “substantial
contribution of personnel and equipment” (AR-V-B-2-99) to the
management of the Seashore’s hunting program. The superintendent
determines the areas where hunting occurs and the Commonwealth
determines the open season. In the words of the GMP, NPS shares
management of the Seashore with the Commonwealth. Fund for Animals v.
Clark, 27 F. Supp. 2d 8, 12-13 (D. D.C. 1998) (holding that state plan
to hunt bison on federal land was a federal action because the federal
agency had a hand in developing the hunt). Accordingly, there is
sufficient federal participation to make Seashore hunting a “major
Federal action.”
E. The Adequacy of Previous Seashore NEPA Processes
All
defendants contend that even if NEPA does apply to the Seashore [**32]
hunting program, it has been satisfied by both the 1983 EA and the 1998
EIS/GMP.
Although the 1983 EA is not in
the administrative record and has apparently been lost or destroyed,
the Court will presume it once existed because it is referenced in the
Federal Register. See 44 U.S.C. § 1507(1) (“The publication in the
Federal Register of a document creates a rebuttable presumption . . .
that it was duly issued, prescribed, or promulgated.”). However, it is
not clear what issues the EA addressed. As the government points out,
the statute of limitations for challenging the sufficiency of the 1983
EA has run. See 28 U.S.C. § 2401(a) (“Every civil action commenced
against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues.”); see also
Southwest Williamson County Community Ass’n, Inc. v. Slater, 173 F.3d
1033, 1036 (6th Cir. 1999) (applying six-year statute of limitations in
NEPA case and holding that claim accrued at the time of the “final
agency action” of issuing an EA and FONSI in connection with challenged
project); Zarrilli v. Weld, 875 F. Supp. 68, 72-3 (D. Mass.
1995) [**33] (applying six-year limitations period in NEPA case).
However,
NPS recognizes that it has a duty to conduct an environmental
assessment and/or review to examine changed circumstances. The 1998 EIS
points out that there have been significantly changed circumstances
over the last two decades resulting from the dramatic increase in
population on the Cape, the impact of development, the increase in
hunting, and the slight shift in visiting times from the peak summer
months to the fall and spring periods. A 1999 resource management plan
states: “Safety concerns are becoming more pressing as hunters are
displaced from rapidly developing adjacent lands and the number of deer
drives increases.” (AR-V (b-2) 097). See also AR-V (b-1) 327 (1992
(expressing same concerns). NPS contends that the 1998 EIS/GMP took the
“hard look” at these changed circumstances that is required by law.
The
key issue, then, is whether the 1998 EIS/GMP is an adequate
environmental impact statement for the Seashore hunting program. The
1998 EIS/GMP was intended as a general “overview” (its word) for the
entire Seashore. It did not, and was not intended to, take a hard,
site-specific, detailed look at hunting. It [**34] did not examine the
direct and indirect effects of hunting, for example, by examining the
effect of hunting on the population of the various different species
hunted in the Seashore, the impact of the presence of [*433] hunters
in different areas within the Seashore, or public safety concerns
associated with hunting weapons being used in the Seashore, which is
also utilized by a great number of non-hunters. See 40 C.F.R. §
1502.16. Nothing in the 1998 EIS/GMP indicates with any precision what
“course of inquiry,” Dubois, 102 F.3d at 1287, the agency took with
respect to examining hunting in the Seashore. The absence of any
probing discussion of these or like issues is not surprising in light
of the fact that the 1998 EIS/GMP was not intended as a NEPA process
for site-specific Seashore hunting.
Defendants
make passing reference to “Resource Management Plans,” which include
discussions of environmental issues. However, a review of these plans
reinforces plaintiffs’ claim that little is known about the impact of
hunting on the Seashore. Indeed, one Resource Management Plan from 1999
states that “essentially nothing is known about the impacts [**35] of
hunting on the park ecosystems.” (AR-V-(B-2)-99). The Resource
Management Plan and Environmental Assessment n4 for Cape Cod National
Seashore, dated March 3, 1982, similarly states: “Research is necessary
to determine the effect of hunting on the population levels of various
game species and the possible changes that might be occurring to the
natural ecosystems and wildlife as a result of hunting. This research
would determine the need for greater protection of game species within
the Seashore area.” (AR-V-(B-1)-4). The Resource Management Plan from
1985 states: “The role of hunting, release of game birds and impact on
other game and non-game species need to be evaluated together with an
examination of possible ecological changes due to stocking and
hunting.” (AR-V-(B-1) 188). The ineluctable conclusion is that research
and evaluation of the environmental effects of hunting have been put on
the back-burner for two decades. Defendants do not press any argument
that recent Resource Management Plans themselves satisfy NEPA, and the
Court finds that they do not.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n4
According to NPS, some early Resource Management Plans from the 1980’s
were also called environmental assessments, but this nomenclature
changed in ensuing years. Defendants do not cite to anything in the
voluminous record that indicates any public involvement in the Resource
Management Plans.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**36]
Both
new and longstanding hunting programs have been subject to NEPA
processes in other parts of the country, often resulting in EA’s and
FONSI’s. See Anderson v. Evans, 314 F.3d 1006, 1017-18 (9th Cir. 2002)
(upholding agency’s EA and FONSI produced for renewal of whale hunting
program for the first time in decades because, inter alia, EA showed
there was little threat to the viability of the whale population and no
public safety concerns); Humane Society of the United States v. Hodel,
268 U.S. App. D.C. 165, 840 F.2d 45, 61-63 (D.C. Cir. 1988) (sustaining
issuance of EA and FONSI produced in connection with agency’s decision
to allow bird hunting in refuge); Fund for Animals v. Frizzell, 174
U.S. App. D.C. 130, 530 F.2d 982, 985-86 (D.C. Cir. 1976) (sustaining
denial of preliminary injunction brought in connection with the
issuance of EA and FONSI produced for a pre-existing hunting program);
Fund for Animals v. Williams, 246 F. Supp. 2d 27, 47-8 (D. D.C. 2003)
(sustaining issuance of EA and FONSI produced in connection with swan
hunting); Humane Society of the United States v. Watt, 551 F. Supp.
1310, 1322 (D. D.C. 1982) [**37] (sustaining latest in a series of
NEPA processes produced for black duck hunting, which pre-dated NEPA by
decades); National Rifle Association of America, Inc. v. Kleppe, 425 F.
Supp. 1101, 1111 (D. D.C. 1976) (sustaining [*434] agency EIS
requiring “steel shot” to be used for bird hunting instead of “lead
shot”).
In the words of the General
Management Plan, “preparation of more detailed environmental
assessments” is needed before the Seashore’s NEPA obligations are
satisfied with respect to hunting. It is unclear whether an EA on
hunting was ever prepared, but if it was, it is outdated. Accordingly,
the Court orders the Park Service to conduct an appropriate
site-specific environmental assessment of the hunting program to
determine whether it has a significant environmental impact requiring
the preparation of an Environmental Impact Statement.
However,
the Court declines the invitation to enjoin the hunting program.
Because the environmental consequences of the hunting program have not
been comprehensively evaluated, it cannot be known whether or not
ending hunting will have a deleterious environmental effect, such as by
allowing for the over-breeding of some species, [**38] like deer. The
most equitable and prudent solution is to allow the status quo to
continue during the pendency of the environmental review.
D. Pheasant Hunting
Plaintiffs
argue that NPS never issued an EA, a FONSI, or an EIS with respect to
the pheasant program. After a review of the administrative record, the
Court concludes that the 1996 EA and FONSI applied only to the impact
of the Bump study itself, not to the pheasant hunting program as a
whole. This can easily be seen not only in the language of the EA and
FONSI, but in the fact that the documents were released before the Bump
study on the impact of pheasants was even begun.
Defendants
press the point that this is a mere technical deficiency in compliance
because (1) the Bump study found that the pheasant release program has
no adverse effects on native populations; (2) the Advisory Commission
reviewed the pheasant stocking issue at three meetings in 2002
(February 1, April 26, and September 27), conducted a public meeting in
March 2002, and issued a report on September 27, 2002 declining to
recommend discontinuation; (3) the waiver of the management policies
was well-reasoned and tantamount to a FONSI; and (4) the [**39] 1998
GMP/EIS discusses three alternatives for the program.
While
it is true that NPS has considered the environmental consequences of
the pheasant program, it has never issued a public EA or a FONSI as it
is required to do under the NEPA regulations. Nor has it involved the
public by permitting comments on a draft EA. The passing references to
the pheasant hunting program in the 1998 GMP/EIS do not suffice even as
an EA. The First Circuit has made clear that documentation in the
administrative record suggesting that an agency has seriously reviewed
the environmental issues surrounding its action does not satisfy NEPA’s
demands. See Grazing Fields Farm v. GoldSchmidt, 626 F.2d 1068, 1073
(1st Cir. 1980) (“The requirement of a detailed statement is not a
pointless technicality even when the agency has in fact considered
environmental factors in good faith; intra-agency consideration lacks
the benefits secured by discussion in the EIS.”); Commonwealth of Mass.
v. Watt, 716 F.2d 946, 951 (1st Cir. 1983) (“Unless a document has been
publicly circulated and available for public comment, it does not
satisfy NEPA’s EIS requirements.”).
NPS
has had a [**40] year since the initiation of the suit to comply with
NEPA and issue [*435] an EA. n5 The Court enjoins the pheasant hunt
program until it does so.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n5
Because the Court finds that NPS has not complied with NEPA, it does
not address the alternative arguments on the validity of the waiver of
general management policies.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
ORDER
Plaintiffs’ motion for summary judgment is ALLOWED, and Defendants’ motions for summary judgment are DENIED. The Court ORDERS
defendant National Park Service to prepare an environmental assessment
for its general hunting program. It shall submit a proposed schedule
for the preparation of a site-specific environmental assessment in
sixty (60) days. The Court enjoins the pheasant hunting program until
an environmental assessment is prepared.
S/PATTI B. SARIS
United States District Judge