July 2020 - Parks & Recreation - 34

L AW R EV I EW

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 Seashorewide 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
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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 Seashorewide 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 veg-
July 2020 - Parks & Recreation

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