NEPA Process for Deer Management at National Seashore

June 25, 2020, Department, by James C. Kozlowski, J.D., Ph.D.

2020 July Law Review Deer Management at National Seashore 410

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In the case of Friends of Animals v. Romero, 948 F.3d 579 (2nd Cir. 9/17/2019), the United States Court of Appeals for the Second Circuit had to determine whether the National Park Service (NPS) had complied with the National Environmental Policy Act (NEPA) when NPS developed and approved the White-tailed Deer Management Plan for the Fire Island National Seashore (the Seashore). NPS had adopted the Plan to deal with the adverse environmental impacts associated with an overpopulation of deer on the Seashore.

Plaintiff Friends of Animals (FOA) brought a lawsuit in federal district court against NPS and the NPS Superintendent of the Fire Island National Seashore (Alex Romero), alleging NPS’s Environmental Impact Statement (EIS) and its decision to approve the Plan violated NEPA because the agency:

(1) lacked essential information, (2) failed to take a hard look at the environmental consequences of its action, (3) implemented a Seashore-wide target deer density despite a lack of evidence to support that decision, and (4) failed to consider all the reasonable alternatives.

The federal district court found NPS had complied with NEPA and granted summary judgment in favor of NPS, effectively dismissing FOA’s lawsuit. Friends of Animals appealed.

National Seashore Deer Population
Fire Island is a narrow 32-mile long barrier island off the south shore of Long Island, New York. It is home to the Seashore, which runs from the Robert Moses State Park in the west to the end of the island in the east. The Seashore was established in 1964 as part of the National Park System, for “the purpose of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features within Suffolk County, New York, which possess high value to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population.” 16 U.S.C. § 459e(a).

Although there were very few deer on Fire Island before the Seashore was established, the deer population quickly grew as the number of people on the island increased. By the 1970s and 1980s, the deer population was “established” in private residential communities interspersed within the Seashore. Although deer densities vary throughout the Seashore, the deer remain most densely concentrated in the western portion of the Seashore, likely because of the easy availability of human-generated food in these private residential communities.

The explosion of the deer population in the 1970s brought concerns about Lyme disease and the deer’s destruction of the Seashore’s vegetation. As a result, in the 1980s, Seashore staff, along with academic and agency scientists, began to study the deer, including their movements, interactions with residents, and impact on the Seashore’s vegetation.

Because the information gleaned from those studies demonstrated “the need for a management plan to address impacts associated with changes in white-tailed deer abundance, distribution, and behavior,” NPS initiated the NEPA planning process in October 2010. The goal of this NEPA planning process was to “develop a deer management strategy that supports protection, preservation, regeneration, and restoration of native vegetation and other natural and cultural resources at the Seashore and reduces undesirable human-deer interactions in the Fire Island communities.”

NEPA Scoping Process
To prepare for the development of the EIS, NPS began a “scoping process” to determine the issues the Plan should address. Internal meetings were held to identify the “purpose, need, and objectives” of the Plan. The meetings involved members of an interdisciplinary team (IDT), which included NPS staff from various offices, NPS consultants, and staff from the U.S. Geological Survey Patuxent Wildlife Research Center. The IDT continued to meet throughout the NEPA process; its role was to develop the alternatives that the EIS would evaluate in further detail.

In June 2011, NPS convened a Science Advisory Team (SAT) of 14 experts to answer technical questions from the IDT. SAT was tasked with considering how the deer population was affecting natural and cultural resources and creating social issues, particularly within residential communities, a maritime forest and a historic area within the National Seashore. The SAT provided two reports to the IDT, a summary report in December 2011, and its final recommendations (the SAT Final Report) in February 2012. The IDT then conducted a series of workshops to develop and refine the range of alternatives that the EIS would consider for dealing with the deer problem at the Seashore.

Final EIS Alternatives
This NEPA process culminated in the issuance of a Final EIS in December 2015 and a Record of Decision in April 2016. The EIS considered four alternative plans to manage the deer problem at the Seashore. NEPA requires a “no action alternative” to consider the environmental impacts of retaining the status quo and doing nothing. Among the four alternatives, the requisite, no action alternative, Alternative A, involved the continuation of “current management actions, policies, and monitoring efforts related to deer and their effects.” Alternative A was rejected because it did not further the Plan’s objectives as “no-action would be taken to reduce deer numbers or effect a change in conditions that are the basis for the purpose of and need for action.”

Alternatives B, C and D, the action alternatives, all contained certain common elements to manage the adverse effects of the deer population, including: enhanced public education and outreach, fencing, enhanced deer population and vegetation monitoring, and coordination with the New York State Department of Environmental Conservation.

Each action alternative also proposed a Seashore-wide target deer density of 20 to 25 deer per square mile. The EIS considered, but dismissed from further analysis, the use of site-specific target deer densities for different areas within the Seashore, rather than a Seashore-wide target deer density. The methods used to achieve that target varied among the alternative approaches considered. Alternative B recommended the use of a fertility control agent, while Alternatives C and D used direct reduction methods, such as sharpshooting, capture and euthanasia, as well as public deer hunting.

Ultimately, NPS chose a modified version of Alternative D, which “reduces deer density quickly, providing immediate relief from the adverse impacts of deer browsing” while providing “flexibility in management methods to address future control of deer density in different ways.”

Judicial Review of NEPA Process
The FOA lawsuit alleged NPS did not comply with NEPA and sought an order from the federal district court invalidating the EIS and vacating the Record of Decision approving the Plan. In the opinion of the federal district court: “NPS considered a reasonable range of alternatives and that the administrative record supported its decision to select Alternative D and implement a Seashore-wide target deer density level because it furthered the EIS’s stated objectives.” Accordingly, the federal district court granted the NPS motion for summary judgment effectively dismissing FOA’s lawsuit. FOA appealed.

As cited by the federal appeals court, NEPA “establishes a national policy to encourage productive and enjoyable harmony between man and his environment, and was intended to reduce or eliminate environmental damage and to promote the understanding of the ecological systems and natural resources important to the United States.” To further that policy, the court noted that NEPA requires a federal agency to prepare an EIS before taking any major action that will “significantly affect the quality of the human environment.” 42 U.S.C. § 4332(c).

As described by the court, the EIS serves to “provide a full and fair discussion of significant environmental impacts and to inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” The court, however, recognized that NEPA is “a procedural statute that mandates a process rather than a particular result.” Accordingly, the court acknowledged that an agency is “not constrained by NEPA from deciding that other values outweigh the environmental costs,” as long as the agency “adequately identifies and evaluates the adverse environmental effects of its action.”

As noted by the federal appeals court, judicial review of the NEPA process is governed by the Administrative Procedure Act (APA). Under the APA, federal courts will be deferential in reviewing agency decision making as long as the action taken is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In particular, the federal appeals court acknowledged the scope of APA judicial review under NEPA is “narrow”: “The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.”

Applying the limited role of judiciary review under the APA, the federal court would, therefore, not question whether the court “would have reached the decision under review had we been decision makers within the agency.” On the contrary, the federal appeals court would simply determine “whether the agency has presented a rational basis for the decision reached.” If so, the federal appeals court would then uphold the agency’s decision.

Lack of Essential Information
As cited by the federal appeals court, NEPA’s implementing regulations provide that the EIS must include any information “relevant to reasonably foreseeable significant adverse impacts” that “is essential to a reasoned choice among alternatives.” 40 C.F.R. § 1502.22(a). That being said, the court acknowledged that an agency is “excused from obtaining the information if the cost of doing so is exorbitant or if the means to obtain it are unknown.” Under such circumstances, however, the court noted: the EIS must state, “that such information is incomplete or unavailable.” Further, the court found the EIS “must provide other information to help analyze the reasonably foreseeable significant adverse impacts on the human environment.”

In this particular instance, FOA had argued: “NPS violated NEPA because it lacked information about deer movement on the Seashore that was essential to the decision-making process.” Specifically, FOA claimed information about the deer movement across the Seashore was essential because SAT had warned that without “information regarding whether deer populations on the island move east to west in any significant way, it would be impossible to effectively evaluate how to deal with the alleged deer issues on the Seashore.”

The federal appeals court rejected FOA’s characterization of SAT’s position. In the opinion of the court, there was no suggestion in the SAT Final Report that “the SAT lacked sufficient information about deer movement to make a recommendation or that NPS needed that information to develop the alternatives.”

While SAT thought that it needed “a more detailed understanding of deer movements” if it was going to make “management recommendations for individual deer or clusters of units,” the court noted the SAT Final Report acknowledged that “little is known about individual deer movements at the Seashore” to make management recommendations for individual deer or clusters of units. Moreover, in the opinion of the federal appeals court, SAT had further explored the issue and reviewed other information about individual deer or cluster of units before determining this information was “not necessary for its recommendation.” As a result, the federal appeals court concluded: “NPS was not required to obtain the information about deer movement because it was not essential to a reasoned choice among alternatives.”

In so doing, the federal appeals court also addressed FOA’s argument that the Plan/EIS failed to “address the SAT’s determination that this missing data could better inform management decisions in each of the diverse areas of the Seashore.” In the opinion of the court, the terms “helpful” and “essential” were not synonymous. Specifically, within the context of NEPA, the court concluded “the fact that the data might have been ‘helpful’ does not establish that it was ‘essential’ to reasoned decision making.”

“Hard Look” in EIS
FOA had also argued that NPS failed to take the requisite “hard look” under NEPA in the EIS to examine “the differences between the deer population on the eastern and western portions of the island when making its decision.” According to FOA, the “record is replete with evidence demonstrating that the NPS’s experts recommended and developed different management strategies for areas on the eastern portion of the Seashore and areas on the western portion of the Seashore.”

The federal appeals court acknowledged evidence on the record indicated “the deer populations on the eastern and western portions of the island differ.” Moreover, the court found some communications among members of SAT had suggested “it might be beneficial to distinguish between the two populations.” That being said, the court noted: “The SAT Final Report does not state that the eastern and western portions of the Seashore need to be managed differently.” Instead, the court found the SAT Final Report had provided specific management recommendations from west to east on the Seashore for the private residential communities, a maritime forest and a historic core site.

More importantly, the federal appeals court acknowledged that NPS was “not bound by the SAT’s recommendations.” On the contrary, NPS had convened the SAT to “provide scientific based input (both natural and social) for consideration” by the interdisciplinary team (IDT). Accordingly, as characterized by the federal appeals court: “The SAT Final Report was simply information for the IDT to consider as it developed the alternatives.” Moreover, as noted by the court, “the SAT Final Report recognized that each of its recommendations presented difficulties and NPS would have to balance various factors in developing a plan for action.”

Based upon “a review of the copious administrative record,” the federal appeals court, therefore, determined NPS had indeed taken a “hard look” at the environmental consequences of the Plan:

First, NPS had information from the studies conducted over the thirty years prior to the start of the NEPA process. Those studies provided data on many facets of the unique issues at the Seashore, including information on deer movement, impacts on vegetation, and previous deer management efforts. Second, it held internal meetings to identify the Plan’s objectives. Third, it enlisted the help of numerous experts to provide technical expertise, including the SAT and staff from the New York State Department of Environmental Conservation (“NYS DEC”) and the United States Department of Agriculture’s Animal and Plant Health Inspection Service (“USDA”). Fourth, upon receiving the SAT’s recommendations, it held a series of multi-day workshops and numerous calls where it discussed those recommendations.

Seashore-wide Deer Density
On appeal, FOA had further argued “the decision to set a Seashore-wide target deer density was arbitrary and capricious because the choice is contrary to the evidence in the record and the expert’s recommendations.” In particular, FOA claimed there was no evidence that the deer population in a wilderness area within the Seashore “needs to be reduced.”

As noted by the federal appeals court: “NEPA merely prohibits uninformed — rather than unwise — agency action.” Accordingly, the court found FOA’s argument that “a different course of action would better further the Plan’s objectives” was irrelevant. Under APA review, the court acknowledged that the “judicial role is relegated to affirming the agency’s decision as long as a rational basis is presented for the decision reached.” In this particular instance, the federal appeals court found: “NPS has presented a rational basis for its decision to employ a Seashore-wide target deer density.” Moreover, the court found “the decision does not conflict with the recommendations of the SAT and the IDT”:

Although the SAT Final Report did not propose a Seashore-wide target deer density, nowhere in the SAT Final Report is there any indication that the SAT thought that the use of a Seashore-wide target deer density was an inappropriate way to deal with the problem.

The federal appeals court further noted the NPS had “ruled out a site-specific deer density target approach in favor of a Seashore-wide target deer density” because NPS lacked “site-specific information about how the lowered deer density would affect Seashore resources.” In the absence of such site-specific information, the court found the “Seashore-wide target density” adopted by NPS was “intended to balance anticipated benefits associated with a reduced deer population with consideration for available resources and the cost of implementation.”

In addition, the federal appeals court found NPS had complied with NEPA regulatory requirements by briefly discussing the environmental implications and providing a rationale and reasons in the EIS for “eliminating alternatives from detailed study.” 40 C.F.R. § 1502.14(a). In so doing, the court noted that NEPA does not require an agency to “accord environmental concerns any more weight in the decision-making process than other appropriate concerns such as economic or social benefits.” In this particular instance, the court found NPS was “not weighing environmental concerns against economic or social concerns, but rather weighing competing environmental issues.”

While deer might be considered “sympathetic” and “sentient creatures,” particularly for FOA, the court noted: “NEPA is not an animal protection statute.” In this particular instance, the federal appeals court found NPS had complied with NEPA because the deer were “only one of many environmental factors” to be considered in an EIS to establish management plans for the Seashore. Specifically, the court cited evidence that “the Seashore-wide target deer density level furthers the Plan’s objectives to protect native vegetation and promote its natural regeneration.”

While NPS did not study the impact of the deer on the vegetation in each distinct area of the Seashore, under APA review, the federal appeals court held NPS “was not required to do so because other evidence provided a rational basis for its decision.” While recognizing “it is always possible to explore a subject more deeply and to discuss it more thoroughly,” the federal appeals court found the APA simply requires “the line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts.” In this particular instance, the court found NPS had indeed “articulated a rational basis for its choice,” and therefore, held the agency’s decision was not “arbitrary nor capricious” in violation of the APA:

It was reasonable for NPS to rely on the information obtained from the other areas of the Seashore, along with a study demonstrating that deer densities exceeding 20 deer per square mile negatively affect vegetation, to conclude that reducing the deer density to 20 deer per square mile throughout the Seashore would further the objective to protect the Seashore’s natural vegetation.

Consider All Reasonable Alternatives
On appeal, FOA had also argued NPS had “violated NEPA because it did not adequately consider all of the reasonable alternatives,” including FOA’s suggested fourth action alternative that included all of the shared “common elements” identified in the three action alternatives. As noted by the court, these three action alternatives all included “measures to reduce the deer population that ranged in severity from fertility control to sharpshooting,” as well as “public education and fencing that were aimed at managing the impacts of the remaining deer population.”

While compliance with NEPA regulations requires an agency to “rigorously explore and objectively evaluate all reasonable alternatives,” the federal appeals court acknowledged it was “well-settled that under NEPA the range of alternatives that must be discussed is a matter within an agency’s discretion.” 40 C.F.R. § 1502.14(a). Accordingly, the court found NPS was “not obligated to consider in detail each and every conceivable variation of the alternatives stated.” Instead, compliance with NEPA would only require NPS to “consider such alternatives to the proposed action as may partially or completely meet the proposal’s goal.”

In this particular instance, NPS had initiated a lengthy NEPA process to produce a plan that addressed “the increase in the deer population was negatively affecting the Seashore.” The proposed agency goal of the NPS Plan was to “manage a viable white-tailed deer population in the Seashore” in a manner which was “supportive of the other objectives for this plan/EIS.” Those other objectives included, among other things, “promoting natural regeneration of native vegetation and protecting vegetation communities from a high level of deer browsing.” In order to achieve those vegetation objectives, the federal appeals court found NPS had “reasonably determined that a reduction in the deer population was necessary” to achieve a “target population density,” which would “allow the recovery of vegetation impacted by heavy browsing.”

Since the FOA’s proposed alternative did not include a strategy or “mechanism to reduce the deer population,” the court found the FOA’s proposed alternative “fails to further the Plan’s vegetation objectives.” As a result, the federal district court held that NPS was not obligated to consider FOA’s proposed fourth action alternative.

Having found NPS had “considered a reasonable range of alternatives” and the selection of an alternative which implemented a “Seashore-wide target deer density level” that was reasonably related to the stated management objectives in the EIS, the federal appeals court affirmed the judgment of the federal district court in favor of NPS.

For more information, see “NEPA Challenge to Park Sharpshooters for Deer Control,” James C. Kozlowski, Parks & Recreation, Oct. 2011, Vol. 46, Iss. 10; and search “Fire Island” on YouTube.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation, and Tourism Management at George Mason University. Webpage with link to law review articles archive (1982 to present).