Case 150

Davis v. Latschar, 1998 WL 968474 (D.D.C. Dec. 31, 1998), Docket No. CIV.A. 97-0232 PLF.

The National Park Service (NPS) sought to reinitiate its deer management program at Gettysburg National Military Park and Eisenhower National Historic Site. The program, in effect during 1996 and 1997, called for park rangers to shoot deer in a controlled harvest to maintain population density. NPS suspended the program in July 1997 because of this lawsuit, and stipulated that it would not reinitiate the program without an order from the court. This case involves their request for such an order.

Plaintiffs, Davis et al., argued that the court should enjoin the deer management program because defendant, NPS, had acted contrary to the NPS Organic Act, its own management policies implementing that act, the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA). After finding that NPS had acted consistently with the Organic Act and its implementing guidelines, and that it had complied with the procedures of both NEPA and NHPA, the court granted summary judgment for NPS, permitting it to reinitiate its deer management program.

After this suit was initiated, NPS moved to stay the litigation, arguing that it would eliminate the issues in the lawsuit by suspending the program while revisiting its compliance with the applicable laws. NPS also revealed that it had already initiated procedures to comply with NHPA requirements. NPS argued in the summary judgment motion that it had completed what it believed to be a sufficient NHPA process. It first concluded that the program would have "no adverse effects." It then sought the concurrence of the State Historic Preservation Officer (SHPO), who agreed that there would be "no adverse effects." It used the same process to seek the approval of the Advisory Council on Historic Preservation (Council), who also agreed.

Although plaintiffs did not argue that NPS failed to comply with Section 106 requirements, they asserted that NPS violated the Administrative Procedure Act (APA) by making an arbitrary and capricious decision of "no adverse effect" without considering a "relevant factor." Plaintiffs' primary argument was that the deer management program's effect on Gettysburg's "quiet contemplative atmosphere" (the "relevant factor") was an adverse effect under Section 106, and was not considered by the reviewing parties. The argument was based on an excerpt from a National Register of Historic Places publication, Bulletin No. 40.

However, after reviewing the record, the court concluded that all parties considered the argument. It did state that although the SHPO and the Council did not use those exact words, they did consider that contention through a recharacterization of the argument. The court found that this recharacterization, coupled with the reviewers' concurrence with NPS's finding of "no adverse effect" on Gettysburg's setting, feeling, or association, suggested that the SHPO and the Council fully considered plaintiffs' submissions, and ruled that NPS had complied with the requirements of APA in its review of the effects of the management program pursuant to NHPA. The court issued an order allowing NPS to reinitiate its deer management program.

Plaintiffs filed a motion for the court to amend and reconsider the ruling summarized above. In its opinion regarding this motion, the court asserted that the "quiet, contemplative atmosphere" factor advanced by plaintiffs was not even a "relevant factor" that would need to be considered for the "no adverse effect" finding. An "adverse effect" finding regarding a property's setting is reached "when that character contributes to the property's qualification for the National Register." Section 800.9(b)(2). The court reasoned that a "quiet contemplative atmosphere" was not among the listed National Register criteria.

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