Friends of Animals v. Romero

948 F.3d 579

• Court: Court of Appeals for the Second Circuit
• Decided: February 3, 2020
• Docket: 18-2481-cv
• Status: Published

Opinion

18-2481-cv Friends of Animals v. Romero

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2019

Argued: September 17, 2019 Decided: February 3, 2020

Docket No. 18-2481-cv

FRIENDS OF ANIMALS,

Plaintiff-Appellant,

— v. —

ALEX ROMERO, in his official capacity as Superintendent of Fire Island National Seashore; UNITED STATES NATIONAL PARK SERVICE, an agency of the U.S. Department of the Interior,1

Defendants-Appellees.

B e f o r e:

NEWMAN, CABRANES, and LYNCH, Circuit Judges.

1 Superintendent Alex Romero is automatically substituted as a party pursuant to Federal Rule of Appellate Procedure 43(c)(2) and hereby replaces former Acting Superintendent Kelly Fellner. The Clerk of Court is directed to amend the caption. Plaintiff-Appellant Friends of Animals (“FOA”) brought this action against Defendants-Appellees, the Superintendent of the Fire Island National Seashore and the United States National Park Service (together, “NPS”), claiming that the agency violated the National Environmental Policy Act in approving the White- tailed Deer Management Plan for the Fire Island National Seashore. The United States District Court for the Eastern District of New York (Feuerstein, J.) denied FOA’s motion for summary judgment and granted NPS’s cross-motion for summary judgment. Because NPS’s decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), we AFFIRM the judgment of the district court.

Judge NEWMAN concurs in a separate opinion.

MICHAEL R. HARRIS, Friends of Animals, Centennial, CO, for Plaintiff-Appellant.

JAMES H. KNAPP, Assistant United States Attorney, Central Islip, NY (Varuni Nelson, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, for Defendants-Appellees.

GERARD E. LYNCH, Circuit Judge:

Plaintiff-Appellant Friends of Animals (“FOA”) brought this action against

Defendants-Appellees, the Superintendent of the Fire Island National Seashore

and the United States National Park Service (together, “NPS”), challenging NPS’s

adoption of the White-tailed Deer Management Plan (the “Plan”) for the Fire

Island National Seashore (the “Seashore”). This case requires us to decide

2 whether NPS complied with the National Environmental Policy Act (“NEPA”)

when it developed and approved the Plan to deal with the overpopulation of

deer on the Seashore.

Over the past forty years, the deer population on the Seashore has grown

substantially, negatively affecting the Seashore’s vegetative and cultural

resources and increasing the number of undesirable human-deer interactions. In

2015, after years of study, NPS approved the Plan to reduce the deer population

on the Seashore and manage the impact of the remaining deer. On appeal, FOA

contends that NPS’s Environmental Impact Statement (“EIS”) and its decision to

approve the Plan violated NEPA because the agency (1) lacked essential

information, (2) failed to take a hard look at the environmental consequences of

its action, (3) implemented a Seashore-wide target deer density despite a lack of

evidence to support that decision, and (4) failed to consider all the reasonable

alternatives.

The United States District Court for the Eastern District of New York

(Sandra J. Feuerstein, J.) denied FOA’s motion for summary judgment and

granted NPS’s cross-motion for summary judgment, holding that NPS complied

with NEPA, and FOA appealed. For the reasons that follow, we AFFIRM the

3 judgment of the district court.

BACKGROUND

Fire Island is a narrow 32-mile long barrier island off the south shore of

Long Island. It is home to the Seashore, which runs from the Robert Moses State

Park in the west to the end of the island in the east. The Seashore was established

in 1964 as part of the National Park System, for “the purpose of conserving and

preserving for the use of future generations certain relatively unspoiled and

undeveloped beaches, dunes, and other natural features within Suffolk County,

New York, which possess high value[] to the Nation as examples of unspoiled

areas of great natural beauty in close proximity to large concentrations of urban

population.” 16 U.S.C. § 459e(a).

The Seashore’s varied and distinctive environmental resources have

established its national significance. The Sunken Forest, in the western portion of

the Seashore, is a 250- to 300-year-old maritime forest which contains globally

rare habitat. Farther east is the Otis Park Fire Island High Dune Wilderness (the

“Wilderness”), the only federally designated wilderness in New York State. The

William Floyd Estate, originally owned by a signer of the Declaration of

Independence, is also part of the Seashore even though it is located on Long

4 Island rather than on Fire Island. It spans 613 acres, including a “historic core

area” which contains a historic house and surrounding fields. Fire Island is also

home to seventeen private residential communities (the “Communities”), which

are interspersed within the Seashore on the western end, and three municipal

beaches.1

Although there were very few deer on Fire Island before the Seashore was

established, the deer population quickly grew as the number of people on the

island increased. By the 1970s and 1980s, the deer population was “established”

in the Communities. Today, although deer densities vary throughout the

Seashore, the deer remain most densely concentrated in the western portion of

the Seashore, likely because of the easy availability of human-generated food in

the Communities.

The explosion of the deer population in the 1970s brought concerns about

Lyme disease and the deer’s destruction of the Seashore’s vegetation. As a result,

in the 1980s, Seashore staff, along with academic and agency scientists, began to

study the deer, including their movement, interaction with residents, and impact

1 The Communities are within the Seashore’s “administrative boundary,” but the land within them is privately owned. J.A. 223, 228, 360.

5 on the Seashore’s vegetation. Those groups “have been working to understand

and address issues linked to the deer population on Fire Island” ever since. J.A.

248.

Because the information gleaned from those studies demonstrated “the

need for a management plan to address impacts associated with changes in

white-tailed deer abundance, distribution, and behavior,” NPS initiated the

NEPA planning process in October 2010. Its goal was to “develop a deer

management strategy that supports protection, preservation, regeneration, and

restoration of native vegetation and other natural and cultural resources at the

Seashore and reduces undesirable human-deer interactions in the Fire Island

communities.” J.A. 216. Reducing the harm to the vegetation in the Sunken Forest

and the William Floyd Estate was a particular priority.

To prepare to develop the EIS, NPS began the “scoping process” to

determine the issues the Plan should address. Internal meetings were held to

identify the “purpose, need, and objectives” of the Plan. The meetings involved

members of an interdisciplinary team (“IDT”), which included NPS staff from

various offices, NPS consultants, and staff from the US Geological Survey

Patuxent Wildlife Research Center. As discussed further below, the IDT

6 continued to meet throughout the NEPA process; its role was to develop the

alternatives that the EIS would evaluate in further detail.

In June 2011, NPS convened a Science Advisory Team (the “SAT”) of

fourteen experts to answer technical questions from the IDT. It was tasked with

considering how the deer population was affecting natural and cultural resources

and creating social issues, particularly in the Communities, the Sunken Forest,

and the William Floyd Estate. The SAT conducted eight conference calls, each

scheduled to last approximately four hours, between June 2011 and February

2012. The SAT provided two reports to the IDT, a summary report in December

2011, and its final recommendations (the “SAT Final Report”) in February 2012.

Having received the SAT’s recommendations, the IDT took part in a series

of workshops (the “Alternatives Development Workshops”) and calls (the

“Alternatives Refinement Calls”) to develop and refine the range of alternatives

that the EIS would consider for dealing with the deer problem at the Seashore.

The first Alternatives Development Workshop was held over a three-day period

in December 2011. The SAT provided a summary of its recommendations in

advance of that workshop. After it received the SAT Final Report, the IDT held a

second Alternatives Development Workshop over two days in June 2012. It

7 continued to meet, via telephone, for five Alternatives Refinement Calls between

August and September 2012 to further discuss specific issues and distill the

alternatives. Members of the SAT attended both the Alternatives Development

Workshops and the Alternatives Refinement Calls.

This process culminated in the issuance of a Final EIS in December 2015

and a Record of Decision in April 2016. The EIS considered four alternative plans

to manage the deer problem at the Seashore. Alternative A, the no action

alternative, involved the continuation of “current management actions, policies,

and monitoring efforts related to deer and their effects.” J.A. 225. It was rejected

because it did not further the Plan’s objectives as “no-action would be taken to

reduce deer numbers or effect a change in conditions that are the basis for the

purpose of and need for action.” J.A. 156.

Alternatives B, C, and D, the action alternatives, all contained certain

common elements to manage the adverse effects of the deer population:

enhanced public education and outreach, fencing at the Sunken Forest and the

William Floyd Estate, enhanced deer population and vegetation monitoring, and

coordination with the New York State Department of Environmental

Conservation.

8 Each action alternative also proposed a Seashore-wide target deer density

of 20-25 deer per square mile. As will be discussed further below, the EIS

considered, but dismissed from further analysis, the use of site-specific target

deer densities for different areas within the Seashore, rather than a Seashore-

wide target deer density. The methods used to achieve that target varied among

the alternative approaches considered. Alternative B recommended the use of a

fertility control agent, while Alternatives C and D used direct reduction methods

such as sharpshooting, capture and euthanasia, and public deer hunting.

Once the population had been reduced, Alternative B planned to use the

fertility control agent to maintain the target deer density. Alternative C

contemplated the continued use of the direct reduction methods to maintain the

target deer density, and Alternative D suggested a combination of direct

reduction and fertility control.

Each of the action alternatives included additional methods to manage the

deer in the areas where they were particularly problematic: the Communities, the

Sunken Forest, and the William Floyd Estate. Within the Communities,

Alternative B proposed to relocate deer that were approaching humans to the

Wilderness, while Alternatives C and D proposed to capture and euthanize such

9 deer. All three action alternatives proposed erecting a fence around the Sunken

Forest and moving the deer out of that area. Finally, each action alternative

proposed various fencing options for the William Floyd Estate. Alternative D

contemplated a permanent fence around the historic core and moving the deer

out of the fenced area. The goal of the fencing was to eliminate the deer entirely

from the Sunken Forest and the William Floyd Estate’s historic core.

Ultimately, NPS chose a modified version of Alternative D because it

“reduces deer density quickly, providing immediate relief from the adverse

impacts of deer browsing, and because it incorporates a wider range of

management options than the other alternatives evaluated,” providing “for both

an efficient initial removal of deer and flexibility in management methods to

address future control of deer density in different ways.” J.A. 155.

FOA brought the instant action seeking to invalidate the EIS and vacate the

Record of Decision approving the Plan because NPS did not comply with NEPA.

The parties cross-moved for summary judgment, and the district court denied

FOA’s motion and granted NPS’s motion, holding that NPS considered a

reasonable range of alternatives and that the administrative record supported its

decision to select Alternative D and implement a Seashore-wide target deer

10 density level because it furthered the EIS’s stated objectives. FOA timely filed this

appeal.

DISCUSSION

We review the district court’s ruling on cross-motions for summary

judgment de novo, in each case construing the evidence in the light most favorable

to the non-moving party. Fund for Animals v. Kempthorne, 538 F.3d 124, 131 (2d

Cir. 2008). “Because NEPA does not itself provide for judicial review, the

[Administrative Procedure Act (“APA”)] controls.” Brodsky v. U.S. Nuclear

Regulatory Comm’n, 704 F.3d 113, 119 (2d Cir. 2013). Under the APA, courts

review agency action to determine if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

NEPA “establishes a ‘national policy [to] encourage productive and

enjoyable harmony between man and his environment,’ and was intended to

reduce or eliminate environmental damage and to promote ‘the understanding of

the ecological systems and natural resources important to’ the United States.”

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321).

To further that policy, NEPA requires a federal agency to prepare an EIS

before taking any major action that will “significantly affect[] the quality of the

11 human environment.” 42 U.S.C. § 4332(c). The EIS serves to “provide [a] full and

fair discussion of significant environmental impacts and to inform

decisionmakers and the public of the reasonable alternatives which would avoid

or minimize adverse impacts or enhance the quality of the human environment.”

Natural Res. Def. Council, Inc. v. Fed. Aviation Admin., 564 F.3d 549, 556 (2d Cir.

2009) (internal quotation marks omitted).

NEPA, however, is “a procedural statute that mandates a process rather

than a particular result.” Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545,

557 (2d Cir. 2003). As long as the agency adequately identifies and evaluates the

adverse environmental effects of its action, it is “not constrained by NEPA from

deciding that other values outweigh the environmental costs.” Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

The scope of judicial review is accordingly narrow. “The only role for a

court is to insure that the agency has taken a ‘hard look’ at [the] environmental

consequences; it cannot interject itself within the area of discretion of the

executive as to the choice of the action to be taken.” Kleppe v. Sierra Club, 427 U.S.

390, 410 n.21 (1976) (internal quotation marks omitted). The question is not

whether we “would have reached the decision under review had we been

12 decisionmakers within the agency,” but rather whether the agency has presented

a rational basis for the decision reached. Sierra Club v. U.S. Army Corps of Eng’rs,

772 F.2d 1043, 1050 (2d Cir. 1985).

I. Lack of Information

FOA argues that NPS violated NEPA because it lacked information about

deer movement on the Seashore that was essential to the decision-making

process and it did not comply with NEPA’s disclosure requirements. Under

NEPA’s implementing regulations, the EIS must include any information

“relevant to reasonably foreseeable significant adverse impacts” that “is essential

to a reasoned choice among alternatives.” 40 C.F.R. § 1502.22(a). The agency is

excused from obtaining the information if the cost of doing so is exorbitant or if

the means to obtain it are unknown, but, in that case, the EIS must state “that

such information is incomplete or unavailable,” and it must provide other

information to help analyze the reasonably foreseeable significant adverse

impacts on the human environment. Id. § 1502.22(b).

FOA asserts that information about the deer movement across the Seashore

was essential because the SAT warned that without “information regarding

whether deer populations on the island move east to west in any significant way,

13 it would be impossible to effectively evaluate how to deal with the alleged deer

issues on the Seashore.” Appellant’s Br. 18, 30. FOA overstates the SAT’s

position. Nowhere in the SAT Final Report is there any suggestion that the SAT

lacked sufficient information about deer movement to make a recommendation

or that NPS needed that information to develop the alternatives. The notes from

SAT’s second conference call indicate that at the conclusion of the call, the SAT

thought that it needed “a more detailed understanding of deer movements” if it

was going to make “management recommendations for individual deer or

clusters of units.” J.A. 1983. Over the course of its numerous conference calls, the

SAT reviewed a large quantity of scientific literature. See, e.g., J.A. 2056

(discussing materials SAT members reviewed in advance of one call). It

ultimately issued the SAT Final Report, which included site-specific target deer

densities for the William Floyd Estate and the Sunken Forest, while expressly

acknowledging that “[l]ittle is known about individual deer movements at [the

Seashore].” J.A. 2317.

In other words, despite its statement early on in the process, as it further

14 explored the issue and reviewed other information,2 the SAT determined that the

information was not necessary for its recommendation. NPS was not required to

obtain the information about deer movement because it was not “essential to a

reasoned choice among alternatives.” See Nat’l Mining Ass’n v. Zinke, 877 F.3d

845, 875-76 (9th Cir. 2017) (upholding EIS despite missing data because it was not

essential). Moreover, as FOA itself seems to acknowledge, if the stray comments

it cites from the SAT’s conference calls establish anything, it is merely that more

data on deer movement could be helpful. See Appellant’s Br. 30 (“[T]he Plan/EIS

fails to address the SAT’s determination that this missing data could better inform

management decisions in each of the diverse areas of the Seashore.”) (emphasis

added). “Helpful” and “essential” are not synonymous terms; the fact that the

data might have been helpful does not establish that it was “essential” to

reasoned decision making.3

2 For example, before the fifth conference call, Brian Underwood, a member of the SAT, provided the other members with a report that compiled and analyzed all of the deer monitoring and vegetative data NPS had accumulated since the 1980s, along with more recent data he himself had gathered. J.A. 2056. 3 As a result, NPS’s express acknowledgment that it lacked detailed information about deer movements, see J.A. 224 (“Little is known about individual deer movements at the Seashore.”), was sufficient to comply with NEPA’s disclosure requirements.

15 II. Failure to Take a Hard Look

FOA argues that NPS failed to take a “hard look” at the differences

between the deer population on the eastern and western portions of the island

when making its decision. According to FOA, the “record is replete with

evidence demonstrating that the NPS’s experts recommended and developed

different management strategies for areas on the eastern portion of the Seashore

and areas on the western portion of the Seashore.” Appellant’s Br. 24.

There is evidence that the deer populations on the eastern and western

portions of the island differ and that, at some points in their many conference

calls, members of the SAT indicated that it might be beneficial to distinguish

between the two populations.4 The SAT Final Report does not state that the

eastern and western portions of the Seashore need to be managed differently, but

it does provide specific recommendations for the Communities, the Sunken

4 The thoughts expressed in the notes from the SAT’s calls do not necessarily reflect a group consensus, as opposed to one team member’s thoughts. See J.A. 1920 (“Dan Niosi elaborated on the role of the Science Team, which is to provide information to the park and planners. He encouraged open dialogue, and explained that the goal of the [SAT] is to not necessarily reach a consensus. Everything addressed during the calls will be clearly documented in notes and recommendations. The park will benefit most from the [SAT] if they hear all sides of each issue.”).

16 Forest, and the William Floyd Estate, which lie from west to east on the Seashore.

For example, in the Communities, the SAT Final Report recommended removing

the deer that were approaching humans using euthanasia or capture and

relocation, while in the Sunken Forest and William Floyd Estate it recommended

site-specific target deer density levels and fencing. This is unsurprising given that

it was tasked with focusing on these areas.

NPS, however, was not bound by the SAT’s recommendations. The SAT

was convened to “[p]rovide scientific based input (both natural and social) for

consideration by the [IDT].” J.A. 1914 (emphasis added). The SAT Final Report

was simply information for the IDT to consider as it developed the alternatives.

See J.A. 264 (“[The Final SAT Report] was used to inform the development of the

alternatives.”). In fact, rather than stating that its approach was the only

permissible way to proceed, the SAT Final Report recognized that each of its

recommendations presented difficulties and NPS would have to balance various

factors “in developing a plan for action.” J.A. 2331.5

Moreover, although NPS’s chosen plan implements a Seashore-wide target

5 In some instances it even provided more than one option. For example, it recommended two potential methods to manage the deer in the Sunken Forest.

17 deer density, rather than site-specific targets for different regions, it also includes

distinctive management actions in the Communities, the Sunken Forest, and the

William Floyd Estate. For example, to reduce the deers’ harmful impact in the

Communities, NPS will increase its public education efforts, conduct additional

surveys and monitoring, and it will take direct reduction actions only when

landowners request such actions. It will conduct a public hunt only in the

Wilderness, which is the most eastern part of the Seashore on Fire Island other

than the Smith Point County Park. Fencing will be erected only around the

Sunken Forest and the historic core of the William Floyd Estate, to entirely

exclude deer from those areas. Accordingly, despite FOA’s contention, to the

extent that the SAT Final Report can be read as a recommendation to distinguish

between the eastern and western portions of the Seashore, the NPS followed that

recommendation.

Finally, a review of the copious administrative record reveals that, far from

failing to take a hard look, the agency made a reasoned decision after years of

discussion and study by numerous experts. First, NPS had information from the

studies conducted over the thirty years prior to the start of the NEPA process.

Those studies provided data on many facets of the unique issues at the Seashore,

18 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.

Notes from those calls and workshops indicate that NPS considered that the

populations on the east and west sides of the island differed. See, e.g., J.A. 2345

(discussing study which indicated that there is a “natural break . . . in the deer

population, resulting in an eastern island population and a western island

population”). In short, it is abundantly clear that NPS took a hard look at the

environmental consequences of the Plan.

III. Use of a Seashore-wide Target Deer Density

FOA argues that the decision to set a Seashore-wide 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, according to FOA, there

19 is no evidence that the deer population in the Wilderness needs to be reduced.

To the extent that FOA argues that a different course of action would better

further the Plan’s objectives, that contention is irrelevant because our “judicial

role is relegated to affirming the agency’s decision as long as a rational basis is

presented for the decision reached.” Sierra Club, 772 F.2d at 1050. “NEPA merely

prohibits uninformed – rather than unwise – agency action.” Robertson, 490 U.S.

at 351.

Restricting our review to the appropriate question, we conclude that NPS

has presented a rational basis for its decision to employ a Seashore-wide target

deer density. First, contrary to FOA’s assertion, 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.6 Even if one could infer that from the SAT Final Report’s

6 In fact, some members of the SAT remained active in the NEPA process after the SAT Final Report was issued. It appears that the SAT’s thinking continued to evolve as the notes from the first Alternatives Refinement Call, at which several members of the SAT were present, indicate that “[t]he Science Team had proposed the use of a deer density target of 20 deer per square mile based on

20 recommendation of site-specific deer densities for certain areas,7 as previously

discussed, NPS was not obligated to follow that suggestion.

Rather than being contrary to the IDT’s recommendations, the record

reveals that the decision to use a Seashore-wide target deer density, rather than

site-specific targets, was developed at an IDT meeting. In particular, after

receiving the SAT Final Report, members of the IDT met for a two-day

Alternatives Development Workshop in June 2012 to develop the alternatives

that the EIS would consider.8 The workshop began with an SAT member

summarizing the SAT’s recommendations. When discussing potential deer

density targets, the group first considered a target of 7 deer per square mile

based on studies about ticks. They also discussed the difficulties associated with

site-specific and Seashore-wide target deer densities and considered “whether it

forest regeneration literature.” J.A. 2460-61. 7 It recommended a deer density target of 14 deer per square mile in the areas surrounding the Sunken Forest and 17 to 20 deer per square mile in the William Floyd Estate. In the “[o]ther maritime forests,” it recommended vegetative monitoring and a reduction in the population in the surrounding areas to 14 deer per square mile. J.A. 2327-2329. 8 A majority of the IDT members were present for this meeting, along with representatives from the NYS DEC, the USDA, the SAT, NPS, and the contractor team which assisted with the preparation of the EIS.

21 is practical to have different densities for different areas in the seashore and

whether it is possible to achieve the densities in such small areas.” J.A. 2351.

A few months later, during the first Alternatives Refinement Call, the

attendees, who included members of the IDT and SAT, again discussed the

possibility of a Seashore-wide target deer density. During that discussion, the

group recognized that a Seashore-wide target deer density provided NPS with

the flexibility to manage the deer population through adaptive management and

to adjust the density level depending on whether NPS was achieving its goals.

Such flexibility was crucial because of the complexity of the issues present at the

Seashore. See, e.g., J.A. 1927 (noting that developing a management plan will be

“a challenge since [the Seashore] is an extremely unique park . . . which will

require complex policy and management decisions”); J.A. 2441 (“[NPS] needs to

be a[s] broad as possible [when developing its management tools], but within

reason, in order to achieve [its] goals.”).9

Ultimately, NPS ruled out a site-specific deer density target approach in

favor of a Seashore-wide target deer density in part because it lacked “site-

specific information [about] how the lowered deer density would affect Seashore

9 In the SAT Final Report, the SAT emphasized that it “consistently discussed the need for the park to implement an adaptive management approach.” J.A. 2332.

22 resources.” J.A. 308.10 Instead, “[t]he Seashore-wide target density was intended

to balance anticipated benefits associated with a reduced deer population with

consideration for available resources and the cost of implementation.” Id. This

process complied with NEPA’s requirement to “briefly discuss the reasons for”

eliminating alternatives from detailed study, 40 C.F.R. § 1502.14(a), and, its

rationale was permissible because, so long as the agency considers the

environmental implications, NEPA does not require it to “accord environmental

concerns any more weight in the decisionmaking process than other appropriate

concerns . . . [such as] economic or social benefits.” Sierra Club, 772 F.2d at 1050.

Notably, in this case the agency is not weighing environmental concerns against

economic or social concerns, but rather weighing competing environmental

issues. NEPA is not an animal protection statute, and the deer ! as sympathetic

as such sentient creatures are ! are only one of the many environmental factors the

agency was required to, and did, consider.

10 Because NPS explicitly stated that it lacked this information and, for the reasons discussed above, reasonably concluded that this information was not “essential” to its final decision, the agency did not violate NEPA’s disclosure requirements.

23 Second, there is evidence that the Seashore-wide target deer density level

furthers the Plan’s objectives to protect native vegetation and promote its natural

regeneration. NPS conducted preliminary vegetation sampling at numerous

areas on the Seashore, including the Sunken Forest, Talisman, and Blue Point, the

results of which “clearly point[ed] to a decline in tree seedlings, shrubs,

herbaceous annuals, and perennials due to browsing from a high density of

deer.” J.A. 373. Additionally, NPS reviewed a study from another park which

concluded that deer densities exceeding 20 deer per square mile “caused

noticeable impacts on forest regeneration.” J.A. 277. Deer densities vary widely

throughout the Seashore, but they exceed 20 deer per square mile even in areas of

less critical concern than the William Floyd Estate and the Sunken Forest. For

example, even in the Wilderness, where FOA asserts that there is no evidence

that the deer are causing any harm, the density is estimated to be 36 deer per

square mile.

Although NPS did not study the impact of the deer on the vegetation in

each distinct area of the Seashore, it was not required to do so because other

evidence provided a rational basis for its decision.11 See Fund for Animals, 538 F.3d

11 The EIS expressly stated that it relied upon this evidence when setting the Seashore-wide target deer density level at 20 deer per square mile.

24 at 135-36 (holding that agency complied with APA despite lack of information

about the widespread impact because there was site-specific evidence available

for many areas).

Of course it is “always possible to explore a subject more deeply and to

discuss it more thoroughly[, but t]he line-drawing decisions necessitated by this

fact of life are vested in the agencies, not the courts.” Coalition on Sensible Transp.,

Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987). 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 vegetation, to conclude that reducing the deer density to 20 deer per square

mile throughout the Seashore would further the objective to protect the

Seashore’s natural vegetation.

In sum, because NPS has articulated a rational basis for its choice, we hold

that its decision was neither arbitrary nor capricious.

IV. Failure to Consider All Reasonable Alternatives

FOA argues that NPS violated NEPA because it did not adequately

consider all of the reasonable alternatives. As previously discussed, in addition to

a no-action alternative, NPS considered three action alternatives. Each of the

25 action alternatives included measures to reduce the deer population that ranged

in severity from fertility control to sharpshooting. The action alternatives shared

common elements, like public education and fencing, that were aimed at

managing the impacts of the remaining deer population. FOA argues that NPS

was obligated to consider an alternative that contained those elements but did

not include any strategy to reduce the deer population.

To comply with NEPA, an agency must “[r]igorously explore and

objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). However,

“[i]t is well-settled that under NEPA the range of alternatives that must be

discussed is a matter within an agency’s discretion.” Natural Res. Def. Council,

Inc., 564 F.3d at 558 (internal quotation marks omitted). An agency is “not

obligated to consider in detail each and every conceivable variation of the

alternatives stated.” Monroe Cty. Conservation Council, Inc. v. Adams, 566 F.2d 419,

425 (2d Cir. 1977) (internal quotation marks omitted). Instead, it must only

“consider such alternatives to the proposed action as may partially or completely

meet the proposal’s goal.” City of New York v. U.S. Dep’t of Transp., 715 F.2d 732,

742 (2d Cir. 1983) (internal quotation marks omitted).

The NEPA process was initiated because, after years of study, NPS

26 determined that the increase in the deer population was negatively affecting the

Seashore. One of the Plan’s objectives is to “[m]anage a viable white-tailed deer

population in the Seashore that is supportive of the other objectives for this

plan/EIS.” J.A. 221 (emphasis added). Those other objectives include, among

other things, promoting natural regeneration of native vegetation and protecting

vegetation communities from a high level of deer browsing. In order to achieve

those vegetation objectives, NPS reasonably determined that a reduction in the

deer population was necessary. See, e.g, J.A. 377 (“The target population density

is expected to allow the recovery of vegetation impacted by heavy browsing.”).

Without a mechanism to reduce the deer population, FOA’s proposed

alternative fails to further the Plan’s vegetation objectives. At the Alternatives

Development Workshop in June 2012, the group, which included SAT members,

expressly noted that the deer population had to be reduced. See J.A. 2358 (“The

[S]eashore needs more than a non-lethal alternative, which will not work, and a

lethal alternative where all the deer die.”).

A review of NPS’s rationale for rejecting Alternative B, which did contain a

mechanism to reduce the deer population, demonstrates the insufficiency of

FOA’s proposal. Alternative B contained the six elements FOA proposes, along

27 with the use of a fertility control agent to reduce the deer population. It was

rejected because it would take too long to reduce the deer population and, even

with the fencing at the Sunken Forest and the William Floyd Estate, “the

continued loss of vegetation to deer browsing outside [the] fenced areas would

severely degrade vegetation communities throughout the Seashore.” J.A. 156.

That in turn would increase the “potential for invasion by non-native plants.” Id.

If use of the fertility control agent did not achieve the deer density goal, the

adverse impacts to vegetation could reach a “tipping point” from which recovery

might not be possible. Id.

Given that the agency thoroughly examined that alternative, which

contained a method to reduce the deer population, and reasonably concluded

that it would not further the Plan’s objectives, there is no question that FOA’s

proposed alternative, which contains no mechanism to reduce the deer

population, would not “partially or completely” meet the Plan’s goals. See City of

New York, 715 F.2d at 742. As a result, NPS was not obligated to consider it.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court.

28 Jon O. Newman, Circuit Judge, concurring:

I concur in virtually all of Judge Lynch’s opinion for the Court (“Ct. Op.”)

but disagree on one point: interpretation of 40 C.F.R. § 1502.22 (“Regulation”).

Because the Regulation might be at issue in subsequent cases concerning the

validity of an environmental impact statement (“EIS”), I write separately to

explain what I believe is the correct interpretation. The Regulation is set out in full

in the margin.1

1 “When an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking. “(a) If the incomplete information relevant to reasonably foreseeable adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement. “(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known, the agency shall include within the environmental impact statement: “(1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. For the purposes of this section, ‘reasonably foreseeable’ includes impacts which have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason. “(c) The amended regulation will be applicable to all environmental impact statements for which a Notice of Intent (40 CFR 1508.22) is published in the Federal Register on or after May 27, 1986. For environmental impact statements in progress, agencies may choose to comply with the requirements of either the original or amended regulation.

1 Judge Lynch’s opinion states that the EIS complies with the disclosure

requirements of the Regulation. See Ct. Op. at 23 n.10. The opinion reaches that

conclusion by combining the disclosure requirements of subparagraphs (a) and

(b).

His reasoning has three parts. First, he invokes the language of

subparagraph (a) that states, “‘If the incomplete information relevant to

reasonably foreseeable adverse impacts is essential to a reasoned choice among

alternatives,’” the information must be included in the EIS. See Ct. Op. at 13

(quoting 40 C.F.R. § 1502.22(a)). Second, he accepts the agency’s finding that the

incomplete information was not essential to a reasoned choice among alternatives.

See id. at 15. Third, and critically, he combines the disclosure requirements of

subparagraphs (a) and (b) by stating that if relevant information is essential, as

stated in subparagraph (a), but the cost of obtaining omitted information is

exorbitant or if the means to obtain it are unknown, as stated in subparagraph (b),

the EIS must provide other information, as also stated in subparagraph (b). See id.

at 13‐14.

It is this third aspect of the reasoning that I believe is incorrect. The

disclosure requirements of the subparagraphs cannot be combined. Subparagraph

2 (a) states the disclosure requirements for incomplete information; subparagraph

(b) states the disclosure requirements for unavailable information. The fact that

the EIS, after finding that the incomplete information was not essential, complied

with the disclosure requirement of subparagraph (a) provides no basis for

excusing the failure to comply with the disclosure requirements of subparagraph

(b). This becomes clear upon careful analysis of the wording and structure of the

Regulation.

That analysis begins with the introductory paragraph of the Regulation.

That paragraph states the general requirement that when an agency is evaluating

significant environmental impacts and there is “incomplete or unavailable

information,” the agency must say that the information is lacking. 40 C.F.R.

§ 1502.22, first paragraph. Note that the introductory paragraph applies when

there is either “incomplete” or “unavailable” information. Then, subparagraph (a)

states a requirement where information is incomplete, and subparagraph (b) states

different requirements where information is unavailable.

The distinction between the coverage of subparagraphs (a) and (b) is made

clear by the different requirements of the two subparagraphs. With respect to

incomplete information, subparagraph (a) requires such information to be

3 included in the EIS. Obviously, such a requirement could not apply to unavailable

information. Instead of such an impossible requirement, subparagraph (b),

applicable to unavailable information, requires inclusion in the EIS of four items.

The EIS acknowledged that the idea of using site‐specific deer density targets, as

Appellant urged the National Park Service to do, was rejected “’because of the lack

of site‐specific information,’” J. App’x 308 (quoting EIS 59), and three of the four

items required by subparagraph (b) are not included in the EIS.

The point is this: the fact that the incomplete information is not essential to

a reasoned decision is irrelevant to this case because the clause concerning

essential information is located in, and applies only to, subparagraph (a) and does

not apply to subparagraph (b). And, to repeat, it is undisputed that the EIS does

not comply with the requirements of subparagraph (b), applicable to unavailable

information.

Despite the lack of compliance with the requirements of subparagraph (b),

I join the Court’s opinion affirming the judgment of the District Court. I rely on

the language of the Administrative Procedure Act stating that “due account shall

be taken of the rule of prejudicial error.” 5 U.S.C. § 706(2)(A). I do not think the

4 lack of compliance with subparagraph (b) was prejudicial in view of the overall

thoroughness of the EIS.