October 2011 - Parks & Recreation - 52

LAW REVIEW continued from page 50

Facts of the Case

(a) Any Federal agency which has
jurisdiction by law or special expertise
with respect to any environmental impact involved and any appropriate
Federal, State or local agency authorized to develop and enforce
environmental standards.
(b) The applicant, if any.
(c) Any person, organization, or
agency requesting the entire environmental impact statement.
(d) In the case of a final environmental impact statement any person,
organization, or agency which submitted substantive comments on the draft.

In so doing, NEPA and implementing CEQ regulations ensure that interested parties and the general public is
provided with adequate notice and an
opportunity to be heard prior to the implementation of any major federal action
" significantly affecting the quality of the
human environment. "

Alternatives " Heart " of EIS
As described in the CEQ regulations (40
CFR § 1502.14), the inclusion of alternatives of the proposed action is the " heart
of the environmental impact statement. "
Further, comparing reasonable alternatives to the proposed action pursuant to
the CEQ regulations achieves NEPA's
policy objectives by " sharply defining
the issues and providing a clear basis
for choice among options by the decisionmaker and the public. " In comparing
reasonable alternatives to the proposed
action, federal agencies are required to
include the following in an EIS:
(a) Rigorously 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.
(b) Devote substantial treatment to

50 Parks & Recreation O C T O B E R

each alternative considered in detail
including the proposed action so that
reviewers may evaluate their comparative merits.
(c) Include reasonable alternatives
not within the jurisdiction of the lead
agency.
(d) Include the alternative of no
action.
(e) Identify the agency›s preferred
alternative or alternatives, if one or
more exists, in the draft statement and
identify such alternative in the final
statement unless another law prohibits
the expression of such a preference.

In the case of Friends of Animals v.
United States National Parks, No. 10-2329,
2011 U.S. App. LEXIS 13094 (3rd Cir.
6/27/2011), several nonprofit animal rights
organizations, including named plaintiff
Friends of Animals (hereinafter plaintiffs
referred to collectively as " FOA " ) challenged " the procedures used by the National Park Service (NPS) to conclude
that a massive deer cull involving sharpshooters was the best option for preserving vegetation in Valley Forge National
Historical Park (Valley Forge Park). " In
particular, pursuant to the NEPA CEQ
regulations cited above, FOA alleged
NPS had failed to properly and fully consider a reasonable " predator " alternative
to this proposed federal action.

2 0 1 1 w w w . N R P A . O R G

Valley Forge Park is located in rapidly
growing suburbs 18 miles northwest
of center city Philadelphia. The park
is overrun with white-tailed deer. Between 1983 and 2009, the deer density in the park increased from 31 to 35
deer per square mile to 241 deer per
square mile. The deer voraciously eat
vegetation within the park, and estimates of the appropriate deer density
for maintaining natural forest regeneration range from 10 to 40 deer per
square mile.
Following a three-year study and
the proper publishing of notices, distribution of a draft environmental
impact statement (EIS), and public
meetings and public comment periods on the issue, the NPS published a
final EIS on August 28, 2009, as required
by NEPA, 42 U.S.C. § 4321 et seq.
The EIS identified as its objectives, in
pertinent part, the protection and restoration of native plant communities and the
cultural landscape through the reduction
of deer browsing, and the maintenance
of the white-tailed deer population within the park in a manner that allowed for
restoration of native plants. The NPS focused on four alternatives for accomplishing these goals.
Alternative A was dubbed " No-action, "
and called for a continuance of the
then-in-place deer management and
monitoring efforts.
Alternative B, " Combined Nonlethal
Actions, " included a proposal for rotational fencing of selected forested
areas, in conjunction with the introduction of a chemical reproductive control
agent, when an effective chemical
agent became available on the market.
Alternative C, " Combined Lethal
Actions, " included direct reduction of
the deer population through the use of
sharpshooters.
Alternative D, " Combined Lethal
and Nonlethal Actions, " involved the
use of sharpshooters to immediately
reduce the deer population, plus the
use of chemical reproductive controls
to maintain the population size once an

Friends of Animals

" comments from the public, affirmatively soliciting comments from those
persons or organizations who may be
interested or affected. " Further, CEQ
regulations (40 CFR § 1502.19) circulate
the entire draft and final environmental impact statements to the following:

October 2011 - Parks & Recreation

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