Humane Society of the United States v. Morton

No. 3627-70 (D.D.C. March 13, 1970)

Controlled hunting, both with firearms and with bows and arrows, is a legitimate means of controlling deer population in a National Wildlife Preserve where there is a rational basis for concluding that the present number of deer endangers the preserve and neighboring privately owned lands, and where the administrative record shows ground for the rejection of alternative methods of animal control. Public recreation, including the controlled hunting of deer, is a valid secondary use of land in a National Wildlife Preserve.

Counsel for Plaintiff
Murdaugh Madden
910 17th St., N.W.
Washington, D.C. 20036

Counsel for Defendant
Robert M. Werdig Asst. United States Attorney
U.S. Courthouse
3rd & Constitution Ave., N.W.
Washington, D.C. 20001

[3 ELR 20522]

Richey, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter having come before the Court on February 7 and 8, 1973, for a trial without a jury, the Court, pursuant to Rule 52 (a) [3 ELR 20523] of the Federal Rules of Civil Procedure, makes the following Findings of Fact and Conclusions of Law:

Introduction

This action challenges the decisions of the Secretary of the Interior permitting public hunting of deer on the Great Swamp, Eastern Neck and Chincoteague National Wildlife Refuges and authorizing the use of shotguns with buckshot, bows and arrows and muzzle-loading rifles in the planned hunts. Plaintiffs contend these decisions are arbitrary, and capricious and in excess of the Secretary's statutory and regulatory authority inasmuch as the decisions are alleged to be: incompatible with the primary purposes for which these refuges were established; incompatible with principles of sound wildlife management; contrary to the public interest and inhumane, as ineffective methods of herd reduction and maintenance.

Findings of Fact

1. Plaintiff The Humane Society of the United States is a Delaware non-profit corporation with its principal office located in the District of Columbia.

2. Plaintiff The Humane Society of the United States, New Jersey Branch, Inc. is a New Jersey non-profit corporation.

3. Plaintiff Frederick Stevenson is a resident and citizen of New Jersey and the United States.

4. Defendants are the Secretary of the Interior and the Director and subordinate officials of the Bureau of Sport Fisheries and Wildlife within the Department of the Interior.

5. Intervenor defendants are the International Association of Game, Fish and Conservation Commissioners, an organization including among its members the wildlife agencies of all fifty (50) states and Robert Canina, Charles Buck, Jr., John C. Korn, Jr., Ernest Nordberg and Richard Beckley who represent themselves and other permittees selected to participate in the one day either sex deer hunt originally scheduled to take place on December 19, 1970 at the Great Swamp National Wildlife Refuge.

6. Individual plaintiff and members of plaintiff organizations represent — and it is not herein challenged by defendants — they are users of the subject National Wildlife Refuges.

7. The Great Swamp National Wildlife Refuge in New Jersey, the Eastern Neck National Wildlife Refuge in Kent County, Maryland, and the Chincoteague National Wildlife Refuge in Virginia are all a part of the National Wildlife Refuge System.

8. These three refuges were established for the primary purpose of providing habitats for migratory birds.

9. The Secretary of the Interior, through the Bureau of Sport Fisheries and Wildlife (hereinafter referred to as "BSFW"), has authorized public hunting of deer in each of these refuges.

10. The following facts are reflected in the administrative record of the Department of the Interior which was before the Court.

11. The Great Swamp National Wildlife Refuge (hereinafter referred to as "Great Swamp") comprising approximately 4,600 acres, including 3,750 acres later designated as a National Wilderness area, was established in 1960 and is located only 30 miles west of New York City, in Morris County, New Jersey, a suburban area.

12. It was proposed, as early as 1963, that the deer herd on the refuge be controlled by public hunting.

13. The primary objective of the proposed deer hunt in 1970 on the refuge was to reduce the herd to the carrying capacity of the habitat.

14. Damage resulting from over-population was observed.

"A prominent browseline on red cedar and 'lolly-pop' shaped shrubs voiced evidence to our over-population of deer. Hitherto lightly browsed species such as red osier dogwood, birch, red maple and blueberry were all browsed heavily this year. Deer also browsed extensively on the thousands of saplings and small trees which were felled in conjunction with our field rehabilitation program this summer and fall. Eight acres of winter rye planted in early fall was used extensively by deer. Deer damage complaints by refuge neighbors, particularly nurserymen, increased substantially this year."

15. A "browseline" is an indication of over utilization of the habitat.

16. In 1968, defendants "temporarily" ruled out a hunting program due to opposition from some of their influential local benefactors, because their support was necessary to the land acquisition program. Again in 1969, this same reason was given for the further postponement of public hunting on the Refuge.

17. In 1970, Great Swamp National Wildlife Refuge Manager George W. Gavutis, Jr. and Regional Director Richard Griffith again proceeded to develop a hunt plan for Great Swamp.

18. Desiring an expression of public opinion on the proposed deer hunt, Regional Director Griffith arranged for a public meeting to be held on May 14, 1970 in Morristown, New Jersey. Notice of the meeting was published in local newspapers.

19. The Morristown meeting was attended by Assistant Regional Director Don Reese, state game personnel, and 10 other interested persons. No one present at the meeting opposed the proposed hunt and most persons present thought it too conservative to achieve effective herd control.

20. On June 5, 1970, Refuge Manager Gavutis submitted a proposed deer hunting plan for 1970 to Thomas Horn, Regional Supervisor for the Division of Refuges.

21. In this proposed plan, Refuge Manager Gavutis stated that "(t)he primary objective of deer hunting on this refuge is to reduce the heard to the carrying capacity of the habitat." Mr. Gavutis considered herd reduction necessary to achieve the fundamental goals of the Master Plan for Great Swamp, i.e., the preservation of the pristine uniqueness and natural beauty of the wilderness area of the refuge, and the provision of suitable habitat for the optimum numbers and variety of migratory birds and other wildlife.

22. Mr. Gavutis outlined the benefits to be yielded by herd reduction, which included, inter alia: 1) the cessation of deer damage to natural refuge habitat, 2) the reduction of deer damage to public and private property and deer-motor vehicle accidents in the vicinity of the refuge, 3) the provision to refuge visitors or the opportunity to observe healthy deer and habitat, and 4) the reduction in the poaching and dog running of deer.

23. In the proposal, the need for herd reduction was supported by the following data: (a) By July 1, 1970, the estimated herd size was 600 head, or approximately 1 deer per nine acres. (b) The range capacity of Great Swamp was estimated at a maximum of 1 deer per 20 acres. (c) A healthy herd should not exceed 275 head. (d) During the winter of 1969-1970, 14 formal complaints and more than 12 informal complaints of deer damage were received from refuge neighbors.

24. To accomplish the desired herd reduction, Mr. Gavutis proposed a one-day either-sex deer hunt for December 19, 1970, limited to 150 permittees selected by the New Jersey Division of Fish, Game and Shell Fisheries, using 12 gauge shotguns with buckshot compatible with state law, and limited to one animal per hunter.

25. Buckshot and birdshot differ according to size. The larger shot pellets, ranging in diameter from .24 inch to .33 inch, are classified as buckshot and are used to kill deer.

26. The limitation on the number of permittees was designed to ensure control over the hunters, a pre-hunt orientation meeting was planned and 5 refuge personnel and 2-4 state game personnel were to be on hand to supervise the hunt.

27. To ensure public safety the entire refuge, with the exception of public roads, was to be closed to all other public uses on December 19 and safety zones were posted around residences adjacent to the refuge.

28. The proposed plan was reviewed by Regional Supervisor Horn on June 10, 1970 and forwarded to the Northeast Regional Office, BSFW.

29. After review, by memorandum of June 24, 1970, Mr. Griffith forwarded the proposed plan to the Director, BSFW for consideration. In the memorandum, Mr. Griffith stated:

"Live trapping and the use of reproductive inhibitors have been considered as methods of herd reduction but the possibility for a successful operation was judged to be highly questionable and costs very high. The State strongly recommended public hunting as the best method of control."

[3 ELR 20524]

30. Live trapping was not considered a feasible alternative for herd reduction because; (a) the cost of trapping would be a minimum of $100 per animal. (b) to be effective there must be a high degree of trap success on a continuing basis. (c) there must be available a suitable place for release of the trapped animals. (d) New Jersey and adjoining states already had problems of deer over-population and, therefore, were not suitable places for release.

31. Reproductive inhibitors were not considered a feasible alternative for herd reduction because there was ". . . no evidence that the reproductive inhibitors would in fact be effective in reducing and maintaining a deer population at an acceptable level.

32. The use of "expert" riflemen, in a procedure similar to that utilized by the National Park Service on National Parks, was considered but not submitted as an alternative for herd reduction because the use of rifles, prohibited by New Jersey Fish and Game Regulations, would be inconsistent with Departmental policy to comply, to the extent practicable, with state law.

33. Even plaintiff Fred Stevenson, given a choice of weapons, stated he would choose a shotgun as the proper weapon for hunting at Great Swamp because ". . . you have a better chance of striking a target with a maximum number of pellets or projectiles if you use a shotgun."

34. The Refuge is surrounded by residential areas. Reasons of public safety indicate the shotgun, i.e., the shorter-ranged weapon, is the more desirable.

35. The proposed plan was next reviewed by Donald J. Hankla, Chief of the Branch of Resource Management, Division of Wildlife Refuges, who recommended approval of the plan to the Director of BSFW.

36. On July 14, 1970, public notice was given in the Federal Register of the proposal to amend 50 C.F.R. § 32.31 (1970), by adding Great Swamp National Wildlife Refuge, New Jersey to the list of areas open to the hunting of big-game animals. Interested persons were invited to make written comment to the Director, BSFW within 30 days.

37. On September 11, 1970, a news release entitled "Proposed Deer Hunt on Great Swamp," was sent to 8 local weekly newspapers and to 3 local daily newspapers on September 14, 1970, explaining the need for the proposed hunt, the selection of public hunting rather than other management alternatives, and details of the hunt. Interested persons were invited to send written comments to the Director of BSFW.

38.Opposition to the hunt was noted by Acting Director, Abram V. Tunison, BSFW, in a memorandum to Regional Director Griffith, dated October 12, 1970.

39. In a memorandum dated October 7, 1970 to the Director of BSFW, Regional Director Griffith again reported deer damage in the refuge area.

"In one instance, the property owner stated his loss was $4000; another property owner estimated deer damage to shrubbery around his residence at $1000. Corn and other crops on farmland adjacent to the swamp have sustained heavy damage. For the most part, damage complaints have been directed to the State game department. The sum total of deer damage is substantial. The most abundant evidence of an over-population of deer is on the private lands near the Refuge boundary and on the fringes of the swamp where the eastern red cedar has been heavily browsed."

40. The proposal to amend 50 CFR § 32.31, so as to add Great Swamp to the list of areas open to big-game hunting, was adopted on October 14, 1970.

41. On November 19, 1970, special regulations for public hunting of deer at Great Swamp were issued specifying a 1-day either-sex season on December 19, 1970, with shotguns, limited to 150 permittees selected by the New Jersey Division of Fish, Game and Shell Fisheries and limited to one animal per hunter.

42. The Eastern Neck National Wildlife Refuge (hereinafter referred to as "Eastern Neck"), comprising approximately 2300 acres, was established in 1960 and is located on Eastern Neck Island, in Kent County, Maryland, in the upper end of the Chesapeake Bay.

43. Cornelius W. Wallace, Refuge Manager of the Blackwater National Wildlife Refuge, because of the absence of resident personnel at Eastern Neck, was responsible for the supervision of Eastern Neck. On May 25, 1966, he proposed an interim hunting plan for Eastern Neck in an effort to curb depredation to crops and wildlife habitat.

44. Mr. Wallace proposed two either-sex deer seasons for late October, one a bow-and-arrow hunt, and one a firearm hunt.

45. The Acting Regional Director, BSFW, Altanta, Georgia, W. L. Towns, concurred with the proposal.

46. On July 28, 1966, the Assistant Director, BSFW, Noble E. Buell, approved the proposed hunt plan for Eastern Neck.

47. Interested persons were invited to submit written comments to the Director of the BSFW within 30 days. No written comments, suggestions or objections were received and the proposed amendment to 50 C.F.R. 32.31 was adopted without change on October 4, 1966.

48. A public hunt was held in October, 1966 and yielded 233 deer.

49. The refuge was still considered over-populated:

"An estimated one deer to 3 1/4 acres existed on the island before the deer hunt held during the latter part of October. As of December 31, 1966, there is an estimated one deer per every 5.4 acres indicating an over-population of deer is still present and that a deer hunt this coming fall [1967] should yield as many deer as the last."

50. In April, 1967, Eastern Neck Refuge Manager Ervin W. McIntosh submitted a revised hunt plan for approval.

51. Mr. McIntosh recommended two 4-day either-sex deer hunts, one for bow-hunters, and one for shotgun-hunters.

52. On August 18, 1967, Abram V. Dunison, Deputy Director, BSFW, approved adoption of the revised hunting plan for Eastern Neck.

53. Since approval of the 1967 revision of the hunt plan for Eastern Neck, public deer hunting has been conducted there each year.

54. On September 14, 1971, special regulations governing the 1971 either-sex hunts for Eastern Neck were issued. The following seasons were set: a) archery - October 22-23 and November 1-2, 1971, b) muzzle loading rifles only - October 29-30, 1971, and c) shotguns only - October 18-19 and November 5-6, 1971.

55. Participants were limited to 250 per day during the archery season and 100 permittees per day during the muzzle loading rifle and shotgun seasons. All hunters were limited to one animal.

56. Muzzle loading rifles could not be less than .40 caliber or use less than 60 grains of black powder. Shotguns could only propel one bullet, or ball at a single discharge with a muzzle velocity of 1200 foot pounds.

57. The Chincoteague National Wildlife Refuge (hereinafter referred to as "Chincoteague") comprising approximately 9,400 acres, was established in 1940 and is located on Assateague Island, Virginia.

58. The prime consideration in establishing the Cincoteague National Wildlife Refuge was to provide protected habitat for the then endangered flock of Greater Snow Geese. Secondary objectives were to provide nesting habitat for other wild fowl.

59. On June 4, 1963, Refuge Manager Charles F. Noble recommended to the Regional Director of BSFW in Atlanta, Georgia, that 1,800 acres consisting of forest, brush and marshland be opened to big-game hunting.

60. Mr. Noble proposed a 5-day season for October 22-26, 1963, hunting to be with shotguns using slugs only.

61. The reason given for commencing the Sika deer hunt at Chincoteague was to reduce the herd.

62.Acting Regional Director, John D. Findley, concurred in the Noble proposal. In a memorandum addressed to the Director of BSFW, Mr. Findley stated,

"Within the past three years the population within the refuge has shown explosive increase. The current estimate of 1,050 animals was based on drive censuses conducted on sample areas of the refuge during January of this year. Another year's production will have been added to the population by the time of the proposed fall hunt. With only 2,000 acres of the refuge considered to be deer habitat, this population [3 ELR 20525] is entirely too high. Prompt and drastic control measures are mandatory if we are to avoid severe damage to the refuge habitat."

63. On August 1, 1963, public notice was given of the proposal to amend 50 C.F.R. 32.31 by adding Cincoteague National Wildlife Refuge to the list of areas open to big-game hunting. The notice stated public hunting was "a necessary management measure in order to prevent damage to refuge habitat and crop planted for waterfowl use." Interested persons were invited to submit written comments to the Director, BSFW within 30 days.

64. No written comments, suggestions or objections were received.

65. The first public hunt for Sika deer on Cincoteague was held October 5-10, 1964. The 1964 Annual Refuge Report noted,

"The public hunt reduced the estimated herd population by 18 percent. Public hunts will be necessary in the future for reducing the herd as a benefit to the public. Age data collected during the hunt indicated that natural mortality was high in our Sika herd, as the majority of the animals aged were less than four years old. . . . Dr. Vagn Flyger, University of Maryland, Natural Resources Institute, was on Chincoteague Refuge during the October Sika deer hunt, collecting data for examination of our Sika deer herd. . . . Dr. Flyger, in a letter after his examination, stated, "I believe that you should be able to harvest many more deer that [sic] the 237 taken last month. Your deer would be in no danger of extermination."

66. Since 1964, Sika deer hunts have been held each year at Cincoteague.

67. Defendants' professional game manager was impressed with the individual hunting quality of the archers who participated in the 1965 Sika deer hunt at the refuge, and many of the better archers from the East participated.

68. At Eastern Neck National Wildlife Refuge, bow and arrow hunters were permitted to hunt because defendants felt that it was important that they be given "equal opportunity" as compared with firearms hunters and wanted to eliminate discrimination possibilities.

69. Bow and arrow deer hunters are allowed on many Refuges more with the idea of supplying some recreation rather than reducing deer populations.

70. The 1965 Sika deer archery hunt at Chincoteague National Wildlife Refuge resulted in the reported killing of 34 deer and the reported "crippling" of 33.

71. During the 1966 Sika deer archery hunt at Chincoteague, more than twice as many deer were reported "crippled" as were reported killed, while at the same Refuge in the shotgun hunt, 7 deer were reported "crippled" compared to 61 reported killed.

72. Because of a substantial increase of their population, White-tailed deer have been hunted annually since 1968.

73. In 1970, an either-sex archery hunt for Sika and Whitetailed deer was held from October 15 through November 14 with 105 hunters participating. A Sika trophy hunt was conducted between November 30 and December 5 and December 7-12 with 20 hunters participating.

74. On September 14, 1971, special regulations governing the 1971 public deer hunts for Chincoteague were issued. An either-sex archery hunt for Sika or White-tailed deer from October 15 through November 13, 1971, except Sundays, and a trophy gun hunt for Sika stags, with six or more combined points per set of antlers, from November 29 through December 4, and from December 6 through December 11, 1971 were established. Consistent with Virginia bow hunting regulations, broad head arrows having blades at least 7/8 inch wide and bows capable of propelling the arrow 125 yards were to be used. For the trophy gun hunt, only rifles or shotguns capable of holding no more than one shell were to be used. Shotguns were to be 20 gauge or larger using shot not smaller than No. 4 buckshot. The trophy hunt was limited to 20 permittees who qualified by submission of a certified range target showing 3 shots fired from a standing position at 50 yards with the weapon to be used in the hunt.

75. During 1971, a total of 93 wildlife refuges throughout the national system were open to public hunting for big-game animals which included deer, elk, moose, bighorn sheep, antelope, feral hogs, bear and caribou. On each refuge hunting was conducted to the extent practicable, in accordance with state law.

76. In 1970 (the last year for which statistics are available) there were 148,811 hunter visits to the National Wildlife Refuge System for big-game - as distinguished from hunting for migratory game birds or upland-game animals. The total number of hunting visits made for all types of hunting on national wildlife refuges in 1970 was 708,437.

77. After review of the above, inter alia, the Secretary:

a) On October 12, 1970, the Acting Director, BSFW, approved the proposal for public hunting at Great Swamp.

b) On August 24, 1966, added Eastern Neck National Wildlife Refuge to the list of areas open big-game hunting.

c) A proposed amendment, opening Chincoteague to big-game hunting, was adopted on September 12, 1963.

78. The primary purpose for which these refuges were established was and is to provide a habitat for migratory waterfowl.

79. Public recreation is an appropriate secondary use of areas within the National Wildlife Refuge System.

80. Public hunting is a form of public recreation.

81. Public hunting is authorized whenever such use is compatible with the major purposes for which a refuge was established.

82. The planned public hunts, challenged here, are compatible with the major purposes for which the three refuges were established.

83. The planned public hunts, challenged herein, are compatible with principles of sound wildlife management.

84. Although there is evidence of disagreement between the parties regarding the conduct of these hunts, it is not of a sufficient degree so as to form a foundation for this Court to find the Secretary's actions in these matters are arbitrary, capricious, in violation of law or the Department's regulations.

Conclusions of Law

1. This Court has jurisdiction over the subject matter in issue.

2. Plaintiffs have standing to sue in this action.

3. The Secretary, in making the challenged decisions, followed all statutory and agency procedures.

4. The Administrative record and the evidence establish a rational basis for the Secretary's determinations.

5. The decisions of the Secretary challenged herein are not arbitrary, capricious or otherwise in violation of law or the agency's regulations.

6. Upon the administrative record and the evidence produced in open court and the law, plaintiffs have failed to establish a right to relief against the Federal defendants.

7. Defendants are entitled to judgment on the merits at the close of plaintiff's case and dismissal of this action.