UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DAVIS III, PAUL

v.

LATSCHAR, JOHN


99-5037a

D.C. Cir. 2000


*	*	*


Buckley, Senior Judge: In 1995, John Latschar, the Su- perintendent of
Gettysburg National Military Park ("Gettys- burg"), instituted a
program to curtail the over-browsing of  wooded and crop areas by
white-tailed deer in Gettysburg  and the neighboring Eisenhower
National Historic Site. The  program provides for the annual killing
of deer by park- employed marksmen after dark from October through
March  until a desired density of deer per wooded square mile is 
achieved. Paul Davis III, five other residents of Gettysburg, 
Pennsylvania, and three animal rights organizations (collec- tively,
"Davis") seek an order enjoining the program on the  basis that, in
approving it, the National Park Service had  failed to comply with its
own enabling statute and policies  implementing that statute, the
National Environmental Policy  Act, and the National Historic


On December 31, 1998, the district court issued an opinion  in which it
granted summary judgment in favor of the Super- intendent, the
Director of the National Park Service, and the  Secretary of the
Interior, all of whom were joined as parties  defendant (collectively,
"Superintendent"). See Davis v.  Latschar, __ F. Supp. 2d ___ (D.D.C.
2000), No. 97-232, 1998  WL 968474, at *1 (D.D.C. Dec. 31, 1998)
("1998 opinion").  Davis thereupon filed a motion requesting the court
to amend  the opinion "to correct ... the Court's characterization of 
the record in the case." Motion to Amend and Reconsider  the Court's
Ruling ("motion to amend"), reprinted in Joint  Appendix ("J.A.") at
920. In a memorandum opinion and  order issued on January 26, 1999,
the court denied the  motion, again entered judgment for the
defendants, and lifted  the stay that had caused the Park Service to
suspend its  implementation of the deer management program. See Davis 
v. Latschar, __ F. Supp. 2d ___, ___ (D.D.C. 2000), No. 97-232,  1998
WL 968474, at *10 (D.D.C. Jan. 26, 1999) ("mem. op.").


We affirm the district court's summary judgment in favor  of the
Superintendent for the reasons stated in the 1998  opinion, which we
adopt as our own and reprint as an 


appendix hereto. To District Judge Paul L. Friedman's  thorough and
well-reasoned analysis, we would add only the  following comments
concerning two issues raised by Davis in  his motion to amend and
before this court in which he claims  that the 1998 opinion
mischaracterizes the record. The first  of these relates to Davis's
argument that the Park Service  was required by the National
Environmental Policy Act to  prepare a supplemental environmental
impact statement  ("SEIS") for the deer management program to take
into  account changes in park management recommended in a  newly
proposed "General Management Plan" ("GMP") that  has since been
adopted by the Park Service. These called for  significant reductions
in wooded acreage and for changes in  agricultural patterns at
Gettysburg that the Park Service  acknowledged would result in a
reduction in the park's deer  population. The second relates to
Davis's argument that the  Park Service failed to address the impact
of the deer manage- ment program on the contemplative atmosphere of
Gettys- burg as he alleges it was required to do under the National 


A. National Environmental Policy Act


In the memorandum Davis submitted in support of the  motion to amend
("Davis memorandum"), reprinted in J.A. at  922-30, he complained that
the 1998 opinion's discussion of  the SEIS issue contained a
misleading footnote and improper- ly relied on an argument the Park
Service's counsel made for  the first time before the district court.
See, e.g., SEC v.  Chenery Corp., 332 U.S. 194, 196 (1947) ("[A]
reviewing court,  in dealing with a determination or judgment which an
admin- istrative agency alone is authorized to make, must judge the 
propriety of such action solely by the grounds invoked by the 
agency."). The footnote complained of states that "[it] ap- pears from
the record ... that ... plaintiffs never request- ed a supplemental
EIS or argued that one was required until  they raised the issue in
this Court." Davis, ___ F. Supp. 2d at  ___ n.7, 1998 WL 968474, at *8
n.7; Appendix at 15-16 n.7.  In support of his motion to amend, Davis
submitted, as new  evidence suggesting that he had, in fact, raised
the issue  before the Park Service, a copy of a letter proposing a 


settlement of the case in which he urged the Service to  initiate an
SEIS. If the court's failure to take cognizance of  facts not
presented to it was indeed error, in this case it was  harmless error.
As Judge Friedman correctly noted in dis- missing the motion to amend,
the footnote "was at most an  alternative ground for the Court's
conclusion that a supple- mental EIS was not required in this case."
Mem. op. at 3.


The Park Service argument to which Davis objected, and  on which the
district court relied, is to be found in the last  sentence of the
following excerpt from the 1998 opinion:


Plaintiffs argue that [the removal of several hundred  acres of
non-historic woodlands and changes in agricul- tural patterns] will
lead to a reduction in the deer  population. Once again, plaintiffs
have improperly fo- cused the inquiry. The deer management program is 
intended to maintain the deer population density, not the  total deer
population.


Davis, ___ F. Supp. 2d at ___, 1998 WL 968474, at *8 (empha- sis in
original); Appendix at 14.


Davis describes the distinction between deer population  (i.e., the
total number of deer within Gettysburg) and deer  density (which is
measured in terms of the number of deer  per wooded square mile within
the park) as a post hoc  rationalization. Davis is mistaken. The deer
management  program is itself predicated on the need to control
density.  See, e.g., Final Environmental Impact Statement, Appendix E 
at 152 ("The National Park Service has decided the initial  April deer
density goal will be 25 deer per square mile of  forested study


It is worth noting that because the program is based on  density rather
than population, it is remarkably sensitive to  the kinds of changes
in the Gettysburg landscape that are  called for in the GMP. The Park
Service recognizes that  "[t]he precise density of deer that would
result in an accept- able level of browsing that would allow
Gettysburg [National  Military Park] and Eisenhower [National Historic
Site] to  meet their landscape management objectives is unknown." 


Id. at 151. Because of uncertainty regarding the optimal  density
level, the Park Service erred on the side of preserving  deer by
setting an initial goal that is less stringent than the  20 deer per
square mile supported by the Park Service's own  research and
recommended by the Pennsylvania Game Com- mission for the county in
which the parks are located. The  program calls for ongoing monitoring
of the effects of deer  browsing on cropfields and woodlots so that
the deer density  goal may be adjusted in light of actual experience
in meeting  the parks' landscape objectives. Id. at 152-53.


B. National Historic Preservation Act


Davis maintains that the Park Service violated the National  Historic
Preservation Act ("NHPA") because, in assessing the  impact of the
nightly killing of deer on the parks, it ignored  what he believed to
be its obligation to protect the "contemp- lative" atmosphere of the
Gettysburg battlefield. Davis mem- orandum at 5-6. The record,
however, confirms that the  Park Service gave the substance of his
argument full consid- eration. See, e.g., Section 106 Case Report at 9
(discussing  claim that deer management program would adversely affect
 the " 'solemn and contemplative purpose' of the park"); Let- ter from
Superintendent Latschar to Brenda Barnett (Aug.  19, 1997) ("Audible
effects are temporary, limited, proportion- ally decreasing, and
minimized by muzzle suppressors.").  Furthermore, the Park Service
provided Davis's position and  its own evaluation of it to the
Pennsylvania Historical and  Museum Commission and the Advisory
Council on Historic  Preservation, with whom it was required to
consult. See 36  C.F.R. ss 800.2(b)(2), (c) (1999). Each of these
bodies agreed  that the program would have no adverse effect on the
quali- ties that make Gettysburg eligible for inclusion in the Nation-


In light of the foregoing, the district court's order denying  the
motion to amend and entering judgment for the Superin- tendent is


Affirmed.


APPENDIX


Paul DAVIS III, et al., Plaintiffs v. John LATSCHAR, et al.,
Defendants


OPINION


Dec. 31, 1998


FRIEDMAN, District Judge.


The National Park Service (the "Park Service") seeks to  reinitiate its
deer management program for Gettysburg Na- tional Military Park
("Gettysburg") and Eisenhower National  Historic Site ("Eisenhower").
The program, which calls for  park rangers to shoot deer in a
controlled harvest to maintain  the population density, was in effect
in 1996 and 1997. The  Park Service suspended the program in July of
1997 because  of the pendency of this lawsuit and stipulated that it
would  not reinitiate the program without an Order from this Court. 
It has now requested such an Order.


Plaintiffs argue that the Court should enjoin the deer  management
program because the Park Service has acted  contrary to (1) the
National Park Service Organic Act ("Or- ganic Act"), 16 U.S.C. s 1 et
seq., (2) its management policies  implementing the Organic Act, (3)
the National Environmen- tal Policy Act ("NEPA"), 42 U.S.C. s 4321 et
seq., and (4) the  National Historic Preservation Act ("NHPA"), 16
U.S.C.  s 470 et seq. Because the Court finds that the Park Service 
acted consistently with the Organic Act and its implementing 
guidelines and that it has complied with the procedures of  both NEPA
and NHPA, the Court grants summary judgment  for the Park Service
which therefore is permitted to reinitiate  its deer management


I. BACKGROUND Gettysburg and Eisenhower are contiguous parcels of land 
in rural Pennsylvania that are managed by the National Park  Service.
Gettysburg was established to "preserve and pro- tect the resources
associated with the Battle of Gettysburg  and the Soldiers' National
Cemetery, and to provide under- standing of the events that occurred
[there], within the  context of American history." See Draft General
Manage-


ment Plan and Environmental Impact Statement for Gettys- burg National
Military Park ("Draft GMP"), Plaintiffs' Exh.  E at 7; see also An Act
to Establish a National Military Park  at Gettysburg, Pennsylvania, s
3, 28 Stat. 651 (1895) (codified  as amended at 16 U.S.C. s 430g) (The
Superintendent of the  park shall "ascertain and definitely mark the
lines of battle of  all troops engaged in the battle of Gettysburg").
Eisenhower  was established to preserve the cultural and natural
resources  of the home of President Dwight D. Eisenhower and to 
interpret his life and career. See Final Environmental Im- pact
Statement for the White-Tailed Deer Management Plan  ("Final EIS") at
3-5, Administrative Record ("A.R.") at 2200- 02.


By the early 1980's, the Park Service had become con- cerned about deer
overpopulation in the area of Gettysburg  and Eisenhower. In 1985, at
the request of the Park Service,  Dr. Gerald Storm of Pennsylvania
State University and his  colleagues began a study of the impact of
the deer on the  parks "because of concern by the National Park
Service  resource managers about the intensive deer browsing of tree 
seedlings in historic woodlots, increasing consumption of farm  crops
by deer, and high number of deer and automobile  collisions." Gerald
L. Storm et al., Executive Summary of  Population Status, Movements,
Habitat Use, and Impact of  White-Tailed Deer ("Storm Report") at 1,
A.R. at 207. Cor- roborating the concerns of the resource managers,
Dr. Storm  found that the browsing of the deer depleted the oak and 
white ash seedlings needed to maintain the woodlots' historic 
appearance and that the deer consumed a large percentage of  the corn
and wheat crop. Id. at 3-4, A.R. at 209-10. Dr.  Storm recommended
that the Park Service reduce the deer  population density to a level
"at or below the level recom- mended for Adams County by the
Pennsylvania Game Com- mission." Id. at 4, A.R. at 210. This level was
20 deer per  forested square mile. Id.


Even before the Storm Report was completed, the Park  Service had begun
to evaluate alternatives for controlling  deer population density. In
February of 1990, Dr. Gerald  Wright of the University of Idaho sent a
100-page draft 


environmental impact statement ("EIS") to the Park Service  that
recommended fencing off the protected areas as the  preferred
approach. See R. Gerald Wright, Deer Manage- ment Alternatives for
Gettysburg National Military Park and  Associated Environmental
Analysis; A Draft Report (1990),  A.R. at 3944-4054. While Dr.
Wright's report received some  initial favorable reviews, it was
subsequently rejected as  substantively and procedurally inadequate
and therefore was  used only as a research document. See May 7, 1990
Memo- randum from Jacob J. Hoogland, Chief, Environmental Quali- ty
Division, to Bob Gift, Regional Director, Mid-Atlantic  Region, A.R.
at 354 ("The draft environmental analysis that  we have reviewed
informally has neither the substance nor  format necessary to suffice


In August of 1992, the Park Service published its Notice of  Intent to
Prepare a Draft Environmental Impact Statement  in the Federal
Register; the notice described a range of  alternatives that might be
used to control deer population  density. See 57 Fed.Reg. 3806 (1992),
A.R. at 984. The Park  Service noticed and held two open meetings to
gather infor- mation from the public on the desired scope of the EIS.
See  Minutes of the January 7 Meeting on White-tailed Deer  Management
at Gettysburg National Military Park/Eisen- hower National Military
Site Held at Penn State, A.R. at  1111-15; Environmental Impact
Statement Meeting, Febru- ary 27th, 1993, A.R. at 1169-75. In both the
draft environ- mental impact statement that it released in 1994 and
the final  environmental impact statement it released in 1995, the
Park  Service explicitly considered a range of alternatives, including
 the fencing alternative proposed by Dr. Wright and endorsed  by
plaintiffs in this litigation. See Draft Environmental  Impact
Statement for the White-Tailed Deer Management  Plan ("Draft EIS") at
24-42, A.R. at 1888-1906; Final EIS at  24-42, A.R. at 2221-41.1 The
Park Service then published its 




__________

n 1. The Park Service created a list of alternatives using sugges-
tions from the public and Park Service personnel and by reviewing  the
available literature. See Final EIS at 23, A.R. at 2220. The  Park
Service eliminated nine alternatives from detailed study after 


Record of Decision ("ROD"), choosing to manage the popula- tion density
through a controlled harvest (i.e., shooting the  deer to reduce their
density), and began the hunt in the fall of  1996. Record of Decision
("ROD"), A.R. at 3570-76.


Plaintiffs brought suit in February of 1997 to enjoin the  shooting of
the deer. After briefing had begun on plaintiffs'  motion for summary
judgment, the Park Service moved to  stay the litigation, arguing that
it would eliminate the issues  in the lawsuit by suspending the deer
management program  while revisiting its compliance with the
applicable laws. See  Defendants' July 25, 1997 Motion for Temporary
Stay of  Litigation at 1-2. The Park Service also revealed that soon 
after plaintiffs filed their complaint it had initiated procedures  to
comply with the National Historic Preservation Act. See  Transcript of
August 12, 1997 Motions Hearing at 7-8. After  the parties agreed that
the deer management program would  not be reinitiated without an Order
from this Court and  formulated procedures to ensure plaintiffs'
involvement in the  NHPA process, the Court stayed the litigation. See
August  15, 1997 Joint Stipulation.


The Park Service now has conducted what it believes to be  a sufficient
NHPA process. It has prepared a Section 106  report analyzing the
possible "adverse effects" of the deer  management program on
Gettysburg and Eisenhower, includ- ing its effect upon "location,
design, setting, materials, work- manship, feeling [and] association,"
36 C.F.R. s 800.9(b), and  it has concluded that the program would
have no "adverse  effects." See Section 106 Case Report; White-Tailed




__________

n initial consideration. These alternatives were: (1) restoration of 
predators, (2) deterrents, (3) repellants, (4) poison, (5) public
hunt- ing, (6) fencing, (7) conversion of cropfields to pasture or hay
and  grasses, (8) deer as a commodity, and (9) landowner privilege.
Id.  at 24-30, A.R. at 2221-27. The Park Service then evaluated the 
five alternatives it considered most viable in more detail. The 
second group of alternatives were: (1) no action, (2A) capture and 
transfer, (2B) direct reduction (shooting the deer), (3) reproductive 
intervention (contraception), (4) cooperative management with 
Pennsylvania authorities, and (5) combined management (a combi- nation
of 2B and 4). Id. at 30-42, A .R. at 2227-41.


Management, A.R. at 6352-62. The Park Service then sought  the
concurrence of the State Historic Preservation Officer  ("SHPO") and,
pursuant to the parties' joint stipulation,  allowed the plaintiffs to
submit their own materials. See  Letter from Dr. John A. Latschar,
Superintendent of Gettys- burg National Military Park to Brenda
Barrett, Director,  Pennsylvania Bureau of Historic Preservation, A.R.
at 6349- 51; Letter from Katherine Meyer to Dr. Brent D. Glass and 
Brenda Barrett, A.R. at 6363-70. The SHPO agreed with the  Park
Service that there would be no "adverse effects." See  Letter from
Brenda Barrett to Dr. John A. Latschar, Super- intendent of Gettysburg
National Military Park, A.R. at 6371.  The same process was used to
seek the approval of the  Advisory Council on Historic Preservation
("ACHP"). After  obtaining the views of the Keeper of the National
Register on  plaintiffs' arguments, the ACHP also agreed with the
finding  of "no adverse effect." See Letter from Don L. Klima, 
Advisory Council on Historic Preservation to Dr. John A.  Latschar,
Superintendent of Gettysburg National Military  Park, A.R. at


On June 19, 1998, the Park Service declared its intent to  reinitiate
the deer management program. In August of 1998,  the Park Service
released a new draft General Management  Plan ("draft management plan"
or "Draft GMP") for Gettys- burg. Based on new research on the Battle
of Gettysburg  and its relationship to Gettysburg's terrain, the draft
manage- ment plan recommended adjusting the landscape to better 
reflect its state at the time of the battle. See Draft General 
Management Plan and Environmental Impact Statement for  Gettysburg
National Military Park ("Draft GMP"), Plaintiffs'  Exh. E at 59-60. In
the draft management plan's preferred  alternative, the Park Service
proposed cutting 576 acres of  non-historic woodlands, altering 278
acres of non-historic  woodlands to reflect historic woodlots and




__________

n 2. The ACHP consulted with the Keeper of the National Regis- ter
regarding what traits Gettysburg possessed that would qualify it  for
the National Register. See Letter from Donald Klima, Advisory  Council
on Historic Preservation to Carol Shull, Keeper of the  National
Register of Historic Places, A.R. at 6464-65.


culture to historical field patterns. See id. at 122-28. All  proposals
considered under the draft management plan were  premised on achieving
a deer density goal of 25 deer per  forested square mile, as well as
the objective of maintaining  the historic woodlots and croplands. See
id. at 74-75, 108-64.


II. DISCUSSION


A. Standard of Review


The Court may set aside the decision of the Park Service to  reinitiate
the deer management program only if that decision  was arbitrary and
capricious, not in accordance with the law  or unwarranted by the
facts. 5 U.S.C. s 706(2)(A). For  challenges to an agency's
construction of the statutes or  regulations that it administers--such
as the Park Service's  reading of its Organic Act and management
policies--the  Court's review must be particularly deferential. The
Court  must defer to the agency's interpretation of a statute that it 
implements "so long as it is reasonable, consistent with the 
statutory purpose, and not in conflict with the statute's plain 
language." OSG Bulk Ships, Inc. v. United States, 132 F.3d  808, 814
(D.C.Cir.1998) (quoting Coal Employment Project v.  Dole, 889 F.2d
1127, 1131 (D.C.Cir.1989)); see Chevron  U.S.A., Inc. v. Natural
Resources Defense Council. 467 U.S.  837, 845, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). Similarly,  provided it does not violate the
Constitution or a federal  statute, an agency's interpretation of its
own regulations "will  prevail unless it is 'plainly erroneous or
inconsistent' with the  plain terms of the disputed regulations."
Everett v. United  States, 158 F.3d 1364, 1367 (D.C.Cir.1998) (quoting
Auer v.  Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997));
 see Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913,  123
L.Ed.2d 598 (1993); Amerada Hess Pipeline Corp. v.  FERC, 117 F.3d


The standard of review for agency decisions is highly  deferential:


[T]he Court must consider whether the decision was based  on a
consideration of the relevant factors and whether  there has been a
clear error of judgment. Although this 


inquiry into the facts is to be searching and careful, the  ultimate
standard of review is a narrow one. The Court is  not empowered to
substitute its judgment for that of the  agency.


Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.  402, 416,
91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see Motor  Vehicles Manufacturers
Ass'n v. State Farm Mutual Auto- mobile Insurance Co., 463 U.S. 29,
43, 103 S.Ct. 2856, 77  L.Ed.2d 443 (1983). The Court's "task is to
determine  'whether the agency's decisionmaking was reasoned,' ...
i.e.,  whether it considered relevant factors and explained the facts 
and policy concerns on which it relied, and whether those  facts have
some basis in the record." National Treasury  Employees Union v.
Horner, 854 F.2d 490, 498 (D.C.Cir.1988)  (quoting American Horse
Protection Ass'n. Inc. v. Lyng, 812  F.2d 1, 5 (D.C.Cir.1987)).


B. The National Park Service Organic Act and Policies


Under the National Park Service Organic Act, the Secre- tary of the
Interior "may ... provide in his discretion for the  destruction of
such animals and of such plant life as may be  detrimental to the use
of any said parks, monuments, or  reservations." 16 U.S.C. s 3.
Because the Organic Act is  silent as to the specifics of park
management, the Secretary  has especially broad discretion on how to
implement his  statutory mandate. See Daingerfield Island Protective
Soc'y  v. Babbitt, 40 F.3d 442, 446 (D.C.Cir.1994); see also Bicycle 
Trails Council v. Babbitt, 82 F.3d 1445, 1454 (9th Cir.1996) 
(adopting the district court's opinion); Intertribal Bison  Coop. v.
Babbitt, 25 F. Supp. 2d 1135 (D.Mont. 1998). Still, a  "finding of
detriment" is necessary before the Park Service  may engage in a
"controlled harvest" such as the one pro- posed by the Park Service in
its deer management program.  Intertribal Bison Coop. v. Babbitt, at
1138 ("pursuant to s 3  of the Organic Act and Park Service policy a
finding of  detriment is necessary to justify a controlled harvest,
... but  an explicit finding of detriment is not otherwise necessary
to  justify the destruction of wildlife ...."); see also General 


Regulations for Areas Administered by National Park Ser- vice, 48
Fed.Reg. 30,252, 30,264 (1983) (controlled harvest  "will be utilized
only when a finding of 'detriment,' based on  scientific
documentation, has been made by the superinten- dent, and it is
determined that removal is an acceptable  method of resource


The Park Service claims that it made a sufficient "finding  of
detriment" to justify the destruction of the deer under the  Organic
Act when it concluded that overbrowsing by deer in  the historic
woodlots and cropfields was detrimental to the  purposes of the
parks.3 As is reflected at several points in  the record, the Park
Service determined that the overbrows- ing was preventing it from
achieving the parks' objectives of  preserving the historic appearance
of the woodlots and crop- fields, components of the landscape critical
to the understand- ing and interpretation of the historic events that
took place in  each park. See, e.g., ROD at 2, A.R. at 3571
("Management  objectives for maintaining landscape components,
specifically  historic woodlots and cropfields, were developed to
enhance  visitor understanding of each park's events"). For example, 
in its Record of Decision initiating the deer management  program, the


[d]ata from the [Storm Report] showed that the woodlots  and cropfields
could not be maintained in a way necessary  to achieve park
objectives. The high level of deer browsing  was preventing a
sufficient number of tree seedlings from  becoming established, which
is needed to perpetuate the  historic woodlots. The agricultural
program was unable to  grow historical crops to maturity in Eisenhower




__________

n 3. Despite plaintiffs' contentions that the Park Service was  acting
in the economic interests of certain tenant farmers in making  this
determination, the Court concludes that the record does not 
demonstrate that the Park Service had any such ulterior motive. It 
was not unreasonable for the Park Service to have kept the farmers 
informed about efforts to control the deer and to respond to their 
concerns in writing.


the southern part of Gettysburg NMP due to deer brows- ing.


Id. at 3, A.R. at 3572. The Court concludes that Park Service  made a
sufficient "finding of detriment" on the record to  satisfy the
requirements of the Organic Act.


Plaintiffs contend, however, that the "finding of detriment"  made by
Park Service is arbitrary and capricious because it is  inconsistent
with the alleged admission by the Park Service in  its draft
management plan that the cropfields and woodlots do  not need
protection because they do not reflect the historic  landscape.
Contrary to plaintiffs' assertion, the draft man- agement plan
contains no such admission. The plan proposes  to eliminate only
non-historic woodlands. See Draft GMP at  122. The perpetuation of the
historic woodlots and croplands  is still necessary to achieve park
objectives under the draft  management plan. Nothing in the record
suggests that the  threats to these historic resources from deer
overbrowsing-- i.e., the suppression of oak and white ash seedlings
and  excessive crop loss--are any less likely to occur in the new 
management regime than at the time the Park Service issued  its
decision to institute the deer management program. The  "finding of
detriment" by the Park Service therefore is not  undermined by the
draft management plan and may still  justify the "destruction" of deer


If the Organic Act were the only authority limiting the  management
discretion of the Park Service, the analysis  would end here. But the
Park Service has further bound its  own discretion through the
adoption of Management Policies.4  The Management Policies provide




__________

n 4. Whether the Park Service is bound by its Management  Policies
turns on "the agency's intent to be bound." Vietnam  Veterans of
America v. Secretary of the Navy, 843 F.2d 528, 538  (D.C.Cir.1988).
Plaintiffs contend that the Park Service demon- strated the requisite
intent in the Forward to policies when it stated  that "[a]dherence to
policy will be mandatory unless waived or  modified by an appropriate
authority." National Park Service  Management Policies, Plaintiffs'
Exhibit I at ix. Since defendants' 


[u]nnatural concentrations of native species caused by hu- man
activities may be controlled if the activities causing the 
concentrations cannot be controlled.... Animal popula- tions or
individuals will be controlled ... in cultural or  development zones
when necessary to protect property or  landscaped areas.


National Park Service Management Policies ("Park Service  Management
Policies"), Plaintiffs' Exhibit I at 4:6. Plaintiffs  argue that the
Park Service has violated these policies be- cause it has opted to
control the deer overpopulation without  first exhausting the
available means to regulate the human  activities causing the
overpopulation. In particular, plaintiffs  again point to the draft
management plan as evidence that  the deer population could be reduced
by controlling "human  activities" such as the decisions of the Park
Service regarding  the maintenance of Gettysburg's woodlands and


The Park Service asserts that the Court does not need to  reach the
merits of plaintiffs' argument because plaintiffs  have misread the
Management Policies. The Park Service  maintains that the statement
that "[a]nimal populations ...  will be controlled in cultural ...
zones when necessary to  protect property or landscaped areas" is
meant as an excep- tion to the preceding sentence requiring that the
Park Ser- vice attempt first to control human activities before
looking to  control the animal populations. As a result, the Park
Service  argues that once it found that Gettysburg and Eisenhower 
were "cultural zones" with landscaped areas in need of pro- tection,
it was entitled to control the deer population directly  without first
seeking to control human activities.5


While the language of the Management Policies could be  interpreted
either as plaintiffs read it or as the Park Service  does, the
interpretation of the Park Service is plausible; it 




__________

n did not challenge this assertion, the Court finds that the Park 
Service intended to be bound and is bound by the policies.


5. Plaintiffs do not contest the Park Service's position that 
Gettysburg and Eisenhower are cultural zones and that their land-
scaped areas need protection.


certainly is not "plainly erroneous or inconsistent" with the  policies
and therefore must prevail over plaintiffs' reading.  See Everett v.
United States, 158 F.2d at 1367. The first  excerpted sentence
describes two alternatives for addressing  overpopulation of native
species--control of the animal popu- lation and control of the human
activities that caused the  "unnatural concentrations" or
overpopulation--and announces  a preference for the latter. The second
excerpted sentence  discusses only one of these two
alternatives--control of the  animal population--in the context of
cultural or development  zones. When these two sentences are
juxtaposed, the read- ing of the second sentence as an exception to
the first  sentence's preference for the control of human activities
is  not unreasonable. If the Park Service intended to express a 
preference for the control of human activities when address- ing
overpopulation in cultural or development zones, it is  reasonable to
expect that it would have explicitly discussed  this alternative
technique in the second sentence, as it had in  the first. It did not
do so. The interpretation of the Man- agement Policies proffered by
the Park Service is not "plainly  erroneous or inconsistent" with the


B. NEPA


Plaintiffs challenge the deer management program under  NEPA on two
grounds. First, they argue that the Park  Service did not consider
many reasonable alternatives in its  final EIS. Second, they argue
that the Park Service must  prepare a supplemental EIS as a result of
the changes in  park management that are considered in the draft
manage- ment plan. Because the Court finds that the Park Service 
considered a full range of reasonable alternatives and was  within its
discretion by opting not to prepare a supplemental  EIS, the Court
concludes that the Park Service fully complied  with NEPA's procedural


1. Reasonable Alternatives


The regulations implementing NEPA require an agency to  "specify the
underlying purpose and need to which the agency 


is responding" and to "[r]igorously explore and objectively  evaluate
all reasonable alternatives, and for alternatives  which were
eliminated from detailed study, briefly discuss the  reasons for their
having been eliminated." 40 C.F.R.  ss 1502.13, 1502.14. The courts
have recognized that these  requirements are interrelated because "the
goals of an action  delimit the universe of the action's reasonable
alternatives."  City of Burlington v. Busey, 938 F.2d 190, 195
(D.C.Cir.1991).  The setting of the objectives and the range of
alternatives to  be considered by an agency are governed by a "rule of
 reason." See City of Grapevine v. U.S. Dept. of Transp., 17  F.3d
1502, 1506 (D.C.Cir.1994); City of Burlington v. Busey,  938 F.2d at
195. The Court must uphold "an agency's  definition of objectives so
long as the objectives that the  agency chooses are reasonable, and
... uphold its discussion  of alternatives so long as the alternatives
are reasonable and  the agency discusses them in reasonable detail."
City of  Burlington v. Busey, 938 F.2d at 196.


Plaintiffs assert that the Park Service unfairly narrowed its 
objective for the deer management program from the perpet- uation of
historic resources to the control of deer population  so as to
eliminate reasonable alternatives. This argument is  not supported in
the record. In an internal memorandum  drafted early in the NEPA
process, the Park Service asserted  that the objective of the program
was "not to reduce the deer  population but to perpetuate the
significant elements of the  cultural landscape." Program Review and
Project Data  Sheet for Deer Management at GETT, A.R. at 168. In the 
Final EIS, the Park Service stated that "a management  action is
needed to control the browsing effects of white-tailed  deer in the
parks." Final EIS at 13, A.R. at 2210. In the  context of the Storm
Report's conclusion that the overbrows- ing of the deer was
threatening the historic resources of  Gettysburg, see Storm Report at
4, A.R. at 220, these state- ments of objective are the same.


Even if the Park Service's alteration of the objective's  wording were
suspicious, any suspicions are allayed by its  thorough consideration
of all alternatives. In its draft EIS  and its final EIS, the Park
Service initially considered and 


rejected a wide range of non-lethal alternatives, including 
alternatives such as fencing and altering cropfield patterns as 
suggested by plaintiffs. See Draft EIS, A.R. at 1892; Final  EIS, A.R.
at 2225-26. The Park Service then proceeded to  evaluate in more
detail the five alternatives it considered  most viable. See Final EIS
at 30-42, A.R. at 2227-41; see  also supra at note 1. It is apparent
from a review of both the  draft EIS and the final EIS that the Park
Service weighed all  of the reasonable alternatives and came to a
fully-informed  decision. This is all that NEPA requires. See
Strycker's  Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28, 
100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (NEPA is only procedur- al and
does not mandate a substantive result); Environmen- tal Defense Fund
v. Massey, 986 F.2d 528, 532 (D.C.Cir.1993)  (NEPA "does not dictate
agency policy or determine the fate  of contemplated action").


Plaintiffs raise only one alternative not considered in the  Final
EIS--the cutting of the non-historic woodlands pursu- ant to the draft
management plan. This cannot be viewed as  a "reasonable alternative,"
however, because it would not  further the objective of reducing
browsing in historic areas.  As the draft management plan noted, the
cutting of the non- historic woodlands would not reduce the desired
deer popula- tion density. See Draft GMP at 255. Since it is deer 
population density that needs to be controlled in order to  preserve
the parks' historic resources, cutting the non- historic woodlands
would not further the deer management  program's objective.
Furthermore, the record suggests that  cutting non-historic woodlands
may even exacerbate the prob- lem by driving the deer into the
historic areas. See Storm  Report at 5, A.R. at 211 (deer displaced by
fencing "would be  forced into other areas where their impact would be
intensi- fied"). Cutting the non-historic woodlands therefore is not
an  alternative that the Park Service had to consider.


2. Supplemental EIS


An agency is required to prepare a supplemental EIS if  "[t]here are
significant new circumstances or information 


relevant to environmental concerns and bearing on the pro- posed action
or its impacts." 40 C.F.R. s 1502.09. "[N]ot  every change requires [a
supplemental EIS]; only those  changes that cause effects which are
significantly different  from those already studied require
supplementary consider- ation." Corridor H Alternatives, Inc. v.
Slater, 982 F. Supp.  24, 30 (D.D.C.1997). The decision to prepare a
supplemental  EIS is again governed by the "rule of reason" and
reviewed  by the courts under the "arbitrary or capricious" standard
of  the APA. Marsh v. Oregon Natural Resources Council, 490  U.S. 360,
373-75, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)  ("[A]n agency need not
supplement an EIS every time new  information comes to light after the
EIS is finalized. To  require otherwise would render agency
decisionmaking in- tractable"). Because the decision whether to
prepare a sup- plemental EIS involves technical issues within the
agency's  area of expertise, courts generally "defer to the 'informed 
discretion of the responsible federal agencies.' " Id. at 377 
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct.  2718, 49


Plaintiffs argue that the draft management plan, issued  after the
preparation of the final EIS, contains new proposals  for managing
Gettysburg's historic resources that will have a  significant impact
on the deer population, thus requiring the  Park Service to prepare a
supplemental EIS. Under the  preferred alternative of the draft
management plan, non- historic woodlands will be cut, other woodlands
will be  thinned to take on the appearance of historic woodlots and 
new field patterns may reduce the availability of crops to the  deer.
See Draft GMP at 122-28. Plaintiffs argue that these  steps will lead
to a reduction in the deer population. Once  again, plaintiffs have
improperly focused the inquiry. The  deer management program is
intended to maintain the deer  population density, not the total deer
population. To consti- tute "significant new circumstances or
information" requiring  a supplemental EIS, the draft management plan
would have  to have a significant effect on the deer population
density  needed to sustain the historic properties of the parks.


Plaintiffs have failed to demonstrate that the draft manage- ment plan
would have any impact on the desired deer popula- tion density.6 After
years of study, the Park Service has  determined that a deer
population density of 25 deer per  forested square mile is the
appropriate level necessary to  conserve the historic resources of
Gettysburg and Eisenhow- er. The target density is intended to ensure
that there are  adequate seedlings to regenerate the young oak and
white  ash trees that make up the historic woodlots and to ensure 
adequate crop production to "tell the stories" of the parks.  See,
e.g., Final EIS at 9,12, A.R. at 2206, 2209. The proposals  in the
draft management plan to cut non-historic woodlands,  convert other
woodlands into historic woodlots and change  agricultural field
patterns do not "cause effects which are  significantly different from
those already studied." Corridor  H Alternatives, Inc. v. Slater, 982
F. Supp. at 30. Specifically,  the Park Service found that the
historic resources will not be  changed under the draft management
plan in a manner that  alters the need to control overbrowsing through
the mainte- nance of the desired deer population density. Because the 
Court has no reason to question the exercise of discretion by  the
Park Service in its area of expertise, it concludes that the  decision
not to prepare a supplemental EIS was not arbitrary  and




__________

n 6. Plaintiffs also contend that the changes in the draft manage- ment
plan might eliminate the need for any shooting because the  deer will
be driven outside the parks in search of cover and food.  This
contention, however, does not undermine the justification for  the
deer management program. If the deer migrate out of the  parks as the
plaintiffs contend they will, the Park Service will not  shoot the
deer, or will shoot fewer deer, because the deer popula- tion density
will fall to an acceptable level. See also ROD at 5, A.R.  at 3574
("When the population is reduced to the density goal, fewer  deer will
need to be killed annually to maintain the population at  that


7. Plaintiffs also argue that the Court should disregard the  arguments
the Park Service made for the first time in this Court as  post hoc
rationalizations that cannot support its decision. See  Motor Vehicle
Manufacturers Ass'n v. State Farm Mutual Auto. 


C. The National Historic Preservation Act


Under Section 106 of the National Historic Preservation  Act, the Park
Service "shall ... take into account" the effects  of any undertaking
on a "site ... included in or eligible for  the National Register." 16
U.S.C. s 470f. In assessing the  effects of its undertaking, the Park
Service is required to  "afford the Advisory Council on Historic
Preservation ... a  reasonable opportunity to comment with regard to
such un- dertaking." 16 U.S.C. s 470f. If the effects are "adverse," 
the agency is required to consider means for alleviating the  impacts
after consulting the State Historic Preservation Offi- cer ("SHPO"),
the Advisory Council on Historic Preservation  ("ACHP") and the
public. 36 C.F.R. s 800.5. "Adverse  effects" are defined as any
"effect on a historic property  [that] may diminish the integrity of
the property's location,  design, setting, materials, workmanship,
feeling, or associa- tion" and expressly include the "[i]ntroduction
of visual, audi- ble, or atmospheric elements that are out of
character with  the property or alter its setting." 36 C.F.R. s
800.9(b). The  requirements of Section 106, however, do not require
the  Park Service to engage in any particular preservation activi-
ties; rather, Section 106 only requires that the Park Service  consult
the SHPO and the ACHP and consider the impacts of  its undertaking.
See Nat'l Trust for Historic Preservation v.  Blanck, 938 F. Supp.
908, 918 (D.D.C.1996) ("Section 106 is  universally interpreted as
requiring agencies to consult and  consider and not to engage in any




__________

n


Ins. Co., 463 U.S. at 50. It appears from the record, however, that 
the Park Service never made the arguments before because plain- tiffs
never requested a supplemental EIS or argued that one was  required
until they raised the issue in this Court. Because the  decision
whether a supplemental EIS is required should be made  initially by
the agency, not by a reviewing court, plaintiffs should  have made a
request to the Park Service and allowed it to make a  decision.
Friends of the River v. FERC, 720 F.2d 93, 109 (D.C.Cir. 1983).
Nevertheless, the Court need not consider the effect of  plaintiffs'
failure to raise the issue earlier because it rejects the  request on


Plaintiffs do not argue that the Park Service failed to  comply with
the procedural requirements of Section 106.  Instead, they assert that
the Park Service in its review  process ignored the primary argument
presented by plain- tiffs. Specifically, during the review process,
plaintiffs main- tained that the deer management program's effect on
Get- tysburg's "quiet contemplative atmosphere" was an adverse  effect
under the regulations of the Advisory Council on His- toric
Preservation. Plaintiffs based this argument on an ex- cerpt from the
National Register for Historic Places Bulletin  on historic
battlefields which described battlefields as "places  of quiet
contemplation." National Register for Historic  Places Bulletin No.
40, Guidelines for Identifying, Evaluat- ing, and Registering
America's Historic Battlefields ("Bulle- tin No. 40"), Plaintiffs'
Exhibit G at 3. Because the SHPO,  the ACHP and the Keeper of the
National Register did not  address or even mention Bulletin No. 40 in
reviewing the  deer management program, plaintiffs maintain that the
find- ing of no "adverse effect" is unlawful under the APA be- cause a
"relevant factor" was not considered. See Motor  Vehicle Manufacturers


A review of the record, however, demonstrates that plain- tiffs'
arguments were considered. While it did not specifically  refer to
plaintiffs' argument or to Bulletin No. 40, the Park  Service found in
its original determination that there was no  adverse effect on the
setting, feeling or association of Gettys- burg or Eisenhower from the
proposed deer management  program. See Letter from John A. Latschar,
Superintendent  of Gettysburg National Military Park to Brenda
Barrett, A.R.  at 6317-19 ("Audible effects are temporary, limited,
propor- tionally decreasing, and minimized by muzzle suppressors"). 
An evaluation of the setting, feeling or association of the  parks
necessarily would include an evaluation of the deer 




__________

n 8. On this issue, the parties are like ships passing in the night. 
Nowhere in the arguments made by defendants before this Court  do they
even address Bulletin No. 40.


management program's effect on Gettysburg's "quiet con- templative
atmosphere."


When the SHPO and the ACHP reviewed the determina- tion of the Park
Service, they received lengthy submissions  from plaintiffs that fully
discussed their argument and Bulle- tin No. 40. See Letter from
Katherine Meyer to Dr. Brent  D. Glass and Brenda Barrett, A.R. at
6363-70; Letter from  Katherine Meyer to John Fowler, Executive
Director of  Historic Preservation, A.R. at 6380-6435. Each of the re-
viewers approved the finding of no adverse effect. While the 
decisions do not mention Bulletin No. 40, the reviewers did  discuss
National Register Bulletin No. 38, addressing the  contention that
Gettysburg is a "traditional cultural proper- ty." Viewed in context,
this was merely a recharacterization  of plaintiffs' argument rather
than a neglect of it. See Letter  from Donald Klima, Advisory Council
on Historic Preserva- tion to Carol Shull, Keeper of the National
Register of  Historic Places, A.R. at 6464-65 ("We note that the
attributes  cited [by plaintiffs' counsel] include values more often
associ- ated with traditional cultural properties, as opposed to other
 National Register properties, insofar as they depend, to a  certain
degree, upon the perceptions and beliefs of those who  attribute
sacred values to this property"); see also Letter  from Carol D.
Shull, Keeper of the National Register to  Donald Klima, Advisory
Council on Historic Preservation,  A.R. 6506-07; Letter from Donald
Klima, Advisory Council  on Historic Preservation, to John A.
Latschar, Superinten- dent of Gettysburg National Military Park, A.R.
6504-05.  This recharacterization, coupled with the reviewers' concur-
rence with the Park Service finding of no "adverse effect" on 
Gettysburg's setting, feeling or association, suggests that the  SHPO
and the ACHP fully considered plaintiffs' submissions,  including the
argument under Bulletin No. 40. The Court  concludes that the Park
Service complied with the APA by  considering all relevant factors,
including plaintiffs' argu- ments, in its review of the effects of the


An Order consistent with this Opinion is entered this same  day.


SO ORDERED.