Last month, the Tenth Circuit Court of Appeals upheld against an environmentalist challenge the decision of the National Park Service to manage the elk herd in the Rocky National Mountain Forest by means of managed culling rather than wolf predation. In WildEarth Guardians v. National Park Service, the plaintiff environmentalists challenged the Service’s environmental impact statement under the National Environmental Policy Act. They argued that the EIS, which detailed the environmental impacts of the Service’s proposed culling plan, was inadequate because it failed to include, among its “alternatives,” the introduction of a natural wolf population to manage the park’s elk population. They also argued that the Service’s plan to use volunteers from the public converted the culling program into hunting, which Congress has forbidden in the park.
In a unanimous opinion authored by Judge Tymkovich, the Tenth Circuit rejected the environmentalists’ arguments. With respect to their NEPA claim, the court underscored that NEPA only requires the consideration of reasonable alternatives. The record here was adequate for the Service to conclude that natural wolf predation would not be a reasonable alternative to human culling. The Service explained that the wolves would be very hard to manage and would likely leave the park to cause much damage to neighboring livestock and private property. Thus, the Service appropriately concluded that the management of the wolves would distract too much from the principal goal of elk management.
The court also found no problem with the Service’s use of volunteers from the public to assist in the culling. The court agreed with the Service’s distinction between culling and hunting. The volunteers would themselves be highly managed and would have to be thoroughly trained first for the job of elk management before they could participate in the culling. Given these limitations, the court was satisfied that the use of volunteers did not convert the culling into hunting.
In reaching that conclusion, the court considered whether it had to defer under Chevron to the Service’s interpretation of the statutory ban on hunting within the park. Although the court ultimately avoided the deference question by relying on the plain meaning of the relevant texts, the court nevertheless expressed some doubt that the Service’s interpretation would even be eligible for Chevron deference (the abstruse Chevron step zero). The court expressed concern that the Service’s interpretation was offered only in the EIS and was not explicitly intended to govern all potential applications of the statute banning hunting in the park. Earlier this week, I blogged on a recent decision from the District of Oregon in which the court afforded Chevron deference notwithstanding that the agency’s interpretation arose within a particular application of law to fact and did not, at least on its face, purport to govern all such applications.
In any event, I find this case interesting more for what it says about WildEarth Guardians than about the law. Too often, certain environmental groups evince an adamantine partisanship for wolf reintroduction without much consideration of the negative impacts to such reintroduction. Here, it seems as if WildEarth Guardians want wolves in the park even if their presence is not the soundest method of elk management (which presumably is a goal that WildEarth Guardians should have). Moreover, the case demonstrates to me the strong distaste that groups like WildEarth Guardians have towards hunting. Here, WildEarth Guardians had no legal objection to Service officials carrying out the killing of elk. Rather, their objection was that private parties would get to participate. Therefore, one might well conclude that WildEarth Guardians’ real concern is with human beings garnering pleasure or satisfaction from the elk killing. The correctness of such a moral position is beyond the scope of this blog post, but it seems likely, based on this lawsuit, that WildEarth Guardians supports it.