Animal Rights Group’s “Purely Speculative” Changes to Wildlife Management Plan Don’t Support Emergency Relief for Tule Elk

By Michelle C. Pardo

On June 22, 2021, Animal Legal Defense Fund (ALDF) and three individuals (represented by Harvard University’s Animal Law & Policy Clinic) brought an Administrative Procedure Act (APA) case against the Secretary of the Interior, the Acting Director of the National Park Service, and the Superintendent of Point Reyes National Seashore, regarding what plaintiffs allege is the federal government’s inhumane management practices of Tule elk, a species of elk native to California. At issue: the government’s alleged failure to revise the 1980 General Management Plan for the Tomales Point portion of the Point Reyes National Seashore (located in Marin County, California) where 293 Tule elk live as well as the 1998 Tule Elk Management Plan, which provided for elk restoration and conservation.The elk at issue live in the federal park, a portion of which is fenced to prevent the elk from competing with cattle for forage and water. Plaintiffs claim that “climate change and other factors” have exacerbated drought conditions, which has in turn prevented the elk from obtaining access to sufficient food and water. Plaintiffs allege that the elk are “dying by the dozens of dehydration and/or starvation” and cites to 152 recent elk deaths. Complaint ¶1. The individual plaintiffs claim that the agency’s wildlife management decisions injure their recreational, aesthetic, and photographic interests.

Plaintiffs claim that the Park Service should remove the fencing that is preventing the elks’ access to food and water and that the Park Service’s decision not to provide the elk with supplemental food and water (or to provide water to only some of the elk) is arbitrary and capricious and an abuse of discretion.

Plaintiffs sought emergency relief (a temporary restraining order and a preliminary injunction) requiring the Park Service to take immediate measures to provide supplemental food and water to the elk while the case is pending.

On August 2, 2021, United States District Judge Haywood S. Gilliam, Jr., of the Northern District of California, denied the plaintiffs’ motion in its entirety. (8/2/2021 Order). The court found that the parties disagreed on two central issues: the reason for the death of 152 Tule elk since 2019 and the herd’s current condition. Order at 5. Plaintiffs’ experts claimed the elk “died of starvation, or starvation was a significant cause of death.”  Id. However, one of plaintiffs’ experts admitted that “it is impossible to know how much [that] parasites contributed to their death.” (Ex. F (Allen Declaration)).

The Park Service represented that it actively monitors the elk in light of the current drought and that its management practices are informed by wildlife biologists, wildlife health experts, veterinarians and wildlife management experts. Id. at 6. Contrary to the plaintiffs’ conclusions, the government experts determined that the cause of elk death was not due to dehydration or starvation, but rather “nutrient deficiencies” that were not caused by lack of forage. Importantly, the government experts found that the vast majority of elk to be “in good to excellent condition with no signs of starvation or dehydration.” Id.

As plaintiffs were seeking mandatory injunctive relief (i.e. relief that orders a party to do something, not simply refrain from doing something to preserve the status quo) – which courts typically disfavor – they faced a demanding standard. Such a plaintiff “must establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Order at 8 (citations omitted). The Court also noted that plaintiffs revised their requested relief during the course of their briefing on the emergency motion.

Plaintiffs never explained to the Court why the wildlife management actions they demanded were legally required.

“Plaintiffs do not cite, and the Court is not aware of, any authorities which would allow Plaintiffs (or the court) to dictate how the Park Service should revise its general management plan, or even what competing interests it should elevate over others in doing so.”

Order at 12.

Rather than simply adopt the animal activist group’s and individuals’ views on elk management, the court determined:

“Plaintiffs are asking the Court to go further by telling the Park Service what new policies it should adopt in the interim. . . . “The Court finds this request particularly concerning where, as here, the parties cite competing evidence about how best to care for the National Seashore and the tule elk who live there.”

Order at 14.

The government defendants also warned of potential issues raised by providing wildlife with supplemental forage, such as the elk becoming dependent on the food and the fact that “artificial feeding of wildlife can increase disease transmission because infectious animals congregate closely with other animals to access the feed.” Order at 15. The Court determined that in the case of competing expert views, “an agency must have discretion to rely on the reasonable opinions of its own qualified experts.” Order at 15. As plaintiffs failed to carry their burden, the Court found that it would be “purely speculative” to adopt plaintiffs changes to the management plans and denied plaintiffs’ motion. Id. Recognizing the importance of Tule elk survival, the court nonetheless determined that the elks’ management involved “complex and nuanced questions of wildlife management” and that the Park Service was not indifferent to these issues. Id. at 16.

While plaintiffs are not entitled to any preliminary relief, the case against the federal government defendants continues. The case is Gescheidt, et al., v. Haaland, et. al, No. 21-cv-04734-HSG (N.D. Cal.).