American Horse Protection Association v. Department of the Interior

No. 80-2126 (10th Cir. December 17, 1982)

The Tenth Circuit affirms the district court's ruling that the Department of the Interior complied with the National Environmental Policy Act and the National Park Service Act in developing a program to eliminate burros from Bandelier National Monument. The court holds that the National Park Service (NPS) reasonably concluded that the program was not a major federal action and did not significantly affect the human environment and therefore did not require preparation of an environmental impact statement. The court also rules that the environmental assessment prepared by NPS adequately discussed the burro problem, alternatives to elimination of the burros, and the beneficial impacts of the program. In addition, the court holds that the NPS action was neither in excess of its authority nor arbitrary. Interior Department regulations permit total eradication of "exotic" as distinguished from "native" plant and animal species that may be detrimental to national park and monument resources. The court holds that NPS properly concluded that the burros, which are not native to the United States, are an exotic species whose presence threatened the resources of Bandelier National Monument.

Counsel for Appellant
David M. Barrett, Joseph E. Schuler
Barrett, Hanna, Daly & Gaspar
2550 M St. NW, Suite 475, Washington DC 20037
(202) 293-3204

Counsel for Appellees
Dirk D. Snel, David C. Shilton, Anthony C. Liotta
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

R. E. Thompson, U.S. Attorney
P.O. Box 607, Albuquerque NM 87103
(505) 766-3341

Counsel for Appellees-Intervenors
Luke J. Danielson
1738 Pearl St., Denver CO 80203
(303) 863-1900

[13 ELR 20465]

McWilliams, J.:

The National Park Service proposed to eliminate the feral burro population of Bandelier National Monument, located in the State of New Mexico, by shooting the burros. Three animal protection associations brought suit in the United States District Court for the District of New Mexico to enjoin the shooting. Two of the three original plaintiffs, the Fund for Animals, Inc., and the Animal Defense Council, entered into a settlement agreement with the Park Service. By the settlement agreement the two settling plaintiffs were given a 60-day period within which to capture the burros and remove them from the Monument, with the further provision that at the end of the 60-day period the Park Service could eliminate all remaining burros "in any manner . . . necessary," including shooting.

The third plaintiff, the American Horse Protection Association, Inc., a Virginia non-profit incorporation, did not settle and filed an amended complaint, which included the Fund for Animals, Inc., as an additional defendant. Several environmental groups intervened as defendants. The Horse Protection Association sought to enjoin any elimination of burros from the Monument, be it by removal or shooting, alleging that any removal would contravene the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and the National Park Service Act, 16 U.S.C. § 1 et seq. A hearing on the Association's request for a preliminary injunction was considered as a hearing "on the merits" and culminated in judgment for the defendants. The Horse Protection Association now appeals the dismissal of its action. We affirm.

The Bandelier National Monument was created pursuant to Presidential Proclamation No. 1332 on February 11, 1916. The primary purpose for its creation was to protect one of the largest concentrations of prehistoric Indian ruins in the American Southwest. The Monument is home to numerous wild life species, including deer, turkey, bear, elk, peregrine falcons, bald eagles, and many smaller animals, including an endangered species of salamander.

Feral burros have inhabited portions of the Monument since the 1930's when they either escaped from or were turned loose by farmers along the Rio Grande River, which abuts the Monument on the east, and the burros eventually found their way onto the Monument. These animals, like all American burros, are descendants of the Somali wild ass (equus asinus) of northeastern Africa. Burros were brought to the Southwest as domestic animals by the Spanish and were also used by prospectors and farmers. There are now between 10,000 to 14,000 feral burros inhabiting the southwestern United States. We are here concerned with something over 100 burros inhabiting the Monument.

The Park Service has for many years been concerned over the continued presence of feral burros on the Monument, fearful that the burros were causing environmental deterioration of the Monument. Numerous studies indicated that the burros caused vegetation damage, resultant soil erosion, and also damage to the archeological ruins in the Monument. Without going into detail, the Park Service determined to its satisfaction that in the long run it would be environmentally beneficial to the Monument if the feral burros were removed, and accordingly embarked on a program of eliminating the burros, by shooting if necessary. Such proposed course of conduct triggered the present litigation.

In connection with its program to eliminate burros from the Monument, the Park Service determined that it did not have to prepare and file an Environmental Impact Statement (EIS). The Association's principal argument is that under applicable statutory law the Park Service was required to file an EIS. The trial court rejected this argument, as do we.

42 U.S.C. § 4332(2)(C) provides that when a federal agency proposes "major federal action significantly affecting the quality of the human environment" (emphasis added), an EIS shall be filed. If the proposed federal action is not major in nature and does not significantly affect the quality of human environment, an EIS need not be filed. Whether, in a given case, an EIS must be prepared is initially a question to be decided by the agency involved. Jette v. Bergland, 579 F.2d 59 [8 ELR 20506] (10th Cir. 1978). If an agency decision that an EIS is not required is reasonable, keeping in mind the mandatory requirements and high [13 ELR 20466] standards set by the National Environmental Policy Act, such determination will not be disturbed by the courts. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973).

In the instant case, all things considered, we conclude that the Park Service's determination that an EIS was not required was reasonable. We are here concerned with the removal of some 100 burros from a National Monument. The record supports the determination by the Park Service that the program is neither major in nature, nor will it in the immediate future significantly affect the quality of human environment. The present case bears a resemblance to American Horse Protection Ass'n, Inc. v. Frizzell, 403 F. Supp. 1206 [6 ELR 20249] (D. Nev. 1975), where the district court held that an agency decision to round up some 400 wild horses did not significantly affect the quality of human environment to the end that an EIS was required.

The Association next argues that the Park Service acted in excess of its authority, and, alternatively, that its action is arbitrary, capricious, and an abuse of discretion. We are not persuaded by this argument.

16 U.S.C. § 1 provides that there is created in the Department of the Interior a service to be called the National Park Service which shall promote and regulate the use of national parks and monuments so as to conserve the scenery and the natural and historic objects and the wildlife thereon and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. § 3 authorizes the Secretary of the Interior to make such rules and regulations as he may deem necessary to effectuate the broad policy set forth in 16 U.S.C. § 1. Section 3 specifically provides that the Secretary may provide "in his discretion" for the destruction of such animals and plant life as may be detrimental to the use of any such national park or monument. Applicable rules and regulations distinguish between so-called "exotic species" of animal and plant life and what is denominated as "native species" of animal and plant life, and authorizes the manipulation of the population number of exotic plant and animal species, "up to and including total eradication," whenever such species threaten the resources in the park or monument.

Acting pursuant to the statutes and regulations above referred to, the Park Serviceconcluded that under the circumstances, the 100 burros on Bandelier National Monument constituted an exotic species whose continued presence threatened the resources in the Monument. Our study of the record convinces us that the Park Service did not act arbitrarily, or capriciously, or in excess of its authority.

Although the Park Service did not file an EIS, it did file an Environmental Assessment in connection with the burro problem at Bandelier National Monument. 40 C.F.R. 1508.9 (1980). The Horse Association asserts that such assessment, including the amendments thereto, was inadequate in that it failed to consider certain aspects of the problem and was "unbalanced" in its presentation. A purpose of an Environmental Assessment is to provide a reviewable record of an agency's decision not to prepare an EIS. Maryland-National Capital Park and Planning Com'n v. U.S. Postal Service, 487 F.2d 1029, 1039-40 [3 ELR 20707] (D.C. Cir. 1973). The Environmental Assessment here involved discussed the general problem, considered the alternatives to elimination, and assessed the ultimate beneficial impact on plant and animal life on the Monument. In short, in our view, the Environmental Assessment is adequate.

Judgment affirmed.