October 2011 - Parks & Recreation - 56

LAW REVIEW continued from page 53

this particular instance, the appeals court
found FOA had failed to offer " a specific,
detailed counterproposal to the agency's
preferred option that had a chance of success " in achieving the stated goal of the
proposed federal action.
FOA sought to add to the record certain studies relating to coyote predation
and coyote-human interactions. The
District Court did not consider them,
but we have, and it is clear that two of
the studies support the NPS's conclusion that coyotes could not reduce the
white-tailed deer population in Valley
Forge Park.

Further, the appeals court noted the
CEQ regulations " governing the NPS's
actions required the agency to rigorously explore all reasonable alternatives and
only " briefly discuss the reasons for eliminating other options from detailed study. "
In this particular instance, the court determined that NPS had " adequately considered and appropriately rejected the option
of coyote predation because there was not
a shred of evidence that such an option
could achieve the NPS's stated goals. " As
a result, applying the deferential standard
of judicial review of agency actions under
the APA, the federal appeals court concluded " NPS's determination on this issue
was neither arbitrary nor capricious, " i.e.,
a failure to consider relevant factors and/
or a clear error in judgment.
On appeal, FOA had also contended that
" alternatives A and B were no more than
'straw men,' and that the NPS from the beginning preferred to " shoot the deer, " the

options available in alternatives C and D. "
As cited by the federal appeals court,
" NEPA requires federal agencies to study
in detail all reasonable alternatives to actions significantly affecting the quality
of the human environment. " 42 U.S.C. §§
4332(2)(C)(iii), (E); 40 C.F.R. §§ 1502.1,
1502.14(a). Moreover, the court noted
that other federal circuit courts of appeal " have interpreted this requirement
to preclude agencies from defining the
objectives of their actions in terms so
unreasonably narrow they can be accomplished by only one alternative. " Reiterating the general principle that " NEPA
does not mandate particular results, " the
federal appeals court, however, acknowledged that the goal of judicial review was
simply " to ensure that the agency gathered information sufficient to permit a
reasoned choice of alternatives as far as
environmental aspects are concerned. "
[Under the applicable deferential APA
standard of judicial review for NEPA challenges to agency actions] courts only
consider whether an agency's decisions
regarding which alternatives to discuss
and how extensively to discuss them
were arbitrary, keeping in mind that such
decisions are necessarily bound by a
rule of reason and practicality.

In this particular instance, the court
found the administrative record " indicated that the NPS engaged in a lengthy and
reasoned review process before focusing on alternatives A, B, C, and D and ultimately choosing Alternative D. "

" No Action " Alternative
On appeal, FOA had also contended that
Alternative A, the " No-action " alternative was a " false alternative " because it
" called for a continuance of the then-inplace deer management and monitoring
efforts. " The federal appeals court rejected this contention, noting CEQ regulations expressly required the NPS to
include the Alternative A " No-action " alternative in the EIS (40 C.F.R. § 1502.14(d)).
In so doing, this requirement forces federal agencies to consider the environmental consequences of effectively doing
nothing and maintaining the status quo.

Conclusion
In the opinion of the court, " by the time
the NPS prepared the final EIS, the record
reflects that the NPS seriously considered
options other than using sharpshooters to
kill the deer. " As a result, based on a review of the record, the federal appeals
court held NPS had properly included
and considered " a reasonable range of
alternatives " in the EIS.
As to Alternative B, " Combined Nonlethal Actions, " the NPS met internally to
discuss management of the white-tailed
deer population beginning in September
2006. The results of those meetings were
discussed in a Final Internal Scoping Report, which shows that NPS considered
the nonlethal options of chemical reproductive control, fencing of targeted areas
or the entire park, the " hazing " or frightening of the deer, translocation, the use
of chemical repellents, and supplemental
feeding to reduce damage to the natural
vegetation.

Having concluded that NPS " did not violate the requirements of NEPA, " the federal appeals court, therefore, affirmed
the judgment of the federal district court
in favor of NPS.
James C. Kozlowski, J.D., Ph.D.

see us in atlanta at booth #812

54	 Parks & Recreation   O C T O B E R

2 0 1 1    w w w . N R P A . O R G

is an associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia.
Email: jkozlows@gmu.edu, Webpage with
link to Law Review archive: http://mason.
gmu.edu/~jkozlows.

 



October 2011 - Parks & Recreation

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