February 2014 - Parks & Recreation - 37

tended that NPS had not considered " a
range of reasonable alternatives as required by NEPA. " The federal district
court rejected this argument:
Here, the entire stated purpose of the
project is to restore the area to a wet-mesic prairie, and because a significant
tree canopy prevents such a restoration,
all of the reasonable alternatives have
to involve the cutting of the vast majority of trees.
Moreover, the court acknowledged
that " a 'less extensive' search for
alternatives is required " when " an
agency makes an informed decision
that the environmental impact will
be small. " As a result, under APA review, the federal district court would
" accord deference " in finding the
scope of alternatives considered by
NPS for the bog restoration project
complied with NEPA.
EA Deficiencies
Plaintiffs further argued that " the
EA contained various inaccuracies, deficiencies and misrepresentations " such that NPS's " decision
to restore Cowles Bog was not sufficiently informed to meet NEPA's
standards. " Pursuant to NEPA, the
federal district court acknowledged
that " an agency decision must be
based on sound science. "
NEPA requires that agencies shall
ensure the professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements " (40
C.F.R. § 1502.24.3). The integrity
of the EA would be undermined if
it contains serious inaccuracies, deficiencies or misrepresentations. It
is also true, however, that scientific
data requires a high level of technical expertise and, as a result, courts
must defer to the informed discretion
of the responsible federal agencies.

Accordingly, in reviewing scientific judgments and technical analyses
within the agency's expertise, the court
acknowledged that judicial review
" is generally at its most deferential. "
Moreover, in conducting a deferential judicial review, the federal district
court was required to " take care to distinguish between claimed deficiencies
that are merely flyspecks and those
that are significant enough to defeat the
goals of informed decisionmaking and
informed public comment. "
In this particular instance, the court
characterized all of plaintiffs' perceived deficiencies as " little more than
flyspecks, " e.g., the bog was actually a swamp. Similarly, plaintiffs had
claimed " a portion [of] Cowles Bog
was timbered in 1830. " Accordingly,
plaintiffs contended that " land with any
trees cannot be wetland " and NPS was
effectively " trying to restore this area to
a different wetland type. " As a result,
plaintiffs claimed " the 'restoration' of
the area to a wet-mesic prairie is not a
'restoration' at all. " The federal district
court rejected this argument:
The Park Service conducted soil
samples that demonstrate that the
project site developed under " conditions of wet-mesic prairie with a few
scattered trees. " Project site hydrology present prior to disturbances by
humans would have supported saturated soils, mesic soils and soils inundated by one to five inches of water.
Accordingly, in the opinion of the
federal district court, NPS " had more
than sufficient scientific evidence to
rationally conclude that a restoration
was appropriate. " As a result, the court
found the secretary's decision was an
" informed " one as required by NEPA.
Plaintiffs had also argued that " the
Secretary failed to sufficiently engage
the public in the decisionmaking process. " As noted by the court, " Feder-

al regulations do not clearly define
how public involvement requirements might apply where, as here,
an agency prepares only an EA (and
FONSI) rather than an EIS. " As cited by the court, in the case of an EA,
the agency is required to " involve environmental agencies, applicants and
the public " only " to the extent practicable " (40 C.F.R. § 1501.4(b)). As a
result, the court found " agencies have
significant discretion in determining
how they comply with NEPA's public
participation regulations in preparing
an EA. " In the opinion of the court,
these NEPA " requirements for public
participation were easily met here. "
The Park Service held a public
scoping meeting at the beginning of
the EA process and a special public
presentation on the EA for the Town
of Dune Acres. They led a site visit of
the proposed project area for members
of the public. They circulated the EA
for public comment and prepared a
document responding to all the comments received. They posted the EA,
the response to comments and the
FONSI on [the] Park Service's website. This was more than sufficient to
meet NEPA's goals for informing the
public about the project.
As a result, the federal district court
held the NPS EA " adequately complied with NEPA's requirements and
provided a sufficient rationale for the
Park Service to undertake the Cowles
Bog restoration. " The federal district
court, therefore, granted summary
judgment in favor of NPS, effectively
dismissing plaintiffs' lawsuit.
James C. Kozlowski, J.D., Ph.D., is an
attorney and associate professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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