December 30, 2011

Mojave Tortoise Doesn't Need Hunting Limits

By Travis Sanford
Courthouse News Service

WASHINGTON (CN) - The National Park Service does not have to protect desert tortoises with special hunting rules in the Mojave National Preserve, a federal judge ruled.

Finding that the agency took the requisite "hard look" at the how a lack of special hunting regulations would impact the species, U.S. District Judge Hellen Huvelle said its decision was not arbitrary or capricious and dismissed the suit filed by Public Employees for Environmental Responsibility (PEER).

The Mojave population of desert tortoises has been protected as a threatened species under the Endangered Species Act since 1995. Hunting or intentional interference with the species is prohibited in its designated critical habitat and on federal lands.

PEER said that the restrictions were necessary to protect the tortoises from the impact of hunting other species in the preserve, which allegedly increased the chances that tortoises would be crushed by cars, startled by gun fire or accidentally shot. The group further argued that the small-game hunting reduced the aesthetic experience of observing tortoises in their natural habitat.

When the Park Service developed its original management plant to protect tortoises in the 1.6 million acre preserve, it included a moratorium during the tortoises' most active period between March and September on any hunting besides big game.

Though the federal law that created the Mojave Preserve requires buy in from the California Department of Fish and Game, the department declined to adopt the moratorium and the Park Service implemented the management plan without it.

PEER petitioned the service in June of 2002 to reinstate the originally proposed hunting restrictions. The Park Service finally denied the petition in October 2010, leading PEER filed suit for an unreasonable eight-year delay.

The service recognized that it had changed its position on the hunting regulations but argued that no evidence had emerged to show that the tortoises had been harmed by small-game hunting in the preserve in the years since the threatened listing.

It also said that the original recommendations were based on inferences made by the U.S. Fish and Wildlife Service about the potential impact of hunting rather than on any scientific studies specific to the tortoises in the preserve.

Appealing the denial of its petition, PEERS moved for summary judgment to implement the restrictions. It claimed that the service's decision constituted an arbitrary and capricious decision in violation of the Administrative Procedures Act and the National Environmental Protection Act.

Huvelle dismissed both claims, however, saying that the PEER suit rested on the assumption that the Park Service's previous inclusion of hunting restrictions in the original management plan showed that it believed the environmental impact of hunting was indeed significant.

"However, the portions cited do not demonstrate that NPS [the National Park Service] in fact found significant environmental impacts, as plaintiff contends, but rather reflect defendants' policy judgment in response to inconclusive data," Huvelle wrote, referring to PEER's citation of the original management plan.

"The problem is that, in 1994, there was little evidence that small game hunting was in fact a significant threat to tortoise mortality and, today, despite efforts to improve monitoring and survey techniques, there is still a paucity of data showing that small game hunting impacts desert tortoises," she added.

Park Service made a "reasoned" response to PEER's petition, consulting extensive records consulted on the maiming or injury of every tortoise in the preserve, the court found.

"Ultimately, the record shows that defendants have satisfied their burden; they have taken a 'hard look' at the impact of not enacting the special hunting regulations and have made a determination, which is supported by the record, that this decision will not have a significant environmental impact," Huvelle wrote.